Harbinson ignores lack of consensus, sends drafts to Doha

by Chakravathi Raghavan

Geneva, 1 Nov 2001 - - The Chairman of the General Council of the World Trade Organization, Mr. Stuart Harbinson of Hong Kong China, made clear Thursday that despite challenges and objections from several developing countries, he would persist in his course of forwarding to the ministers at Doha the draft ministerial declaration prepared by him on his own authority, and leave it to the ministers to deal with it.

In setting such a course for Doha, Harbinson and the WTO head Mike Moore, appear to have set the WTO on a collision course for Doha or one where more comprehensive negotiations than ever before could be launched, but would be difficult to complete and make the trading system face increasing hostility within countries, particularly large developing countries.

In refusing to modify his texts, and insisting on his right to send the text to Doha on his own authority, claiming some past practices, Harbinson said he would however have a covering letter outlining both the process, and the differences on some of the issues in the text.

Nevertheless, and given the time problems, he will not be bringing his covering letter to the General Council again. And though Nigeria, in a formal official letter, has set out Nigeria’s specific differences on several of the issues and formulations, and asked Harbinson to annex that letter too to his text, Harbinson’s statement seemed to indicate he would not do so.

The Council ended its formal meeting to consider the documents, and moved on in the afternoon to a special session to consider the implementation decisions proposed by Moore and Harbinson.

There were attempts to present the text as one that was not favoured by any side and thus with some merits, and setting the WTO on a course that could make the trading system face further troubles ahead came even as reports from Washington spoke of classified briefings about the security situation in Doha for Americans - leaders, business groups and others, many of whom apparently have cancelled their trips.

Some senior diplomats also noted the sudden US open attack on Japan for insisting on negotiations on the anti-dumping rules and their misuse, coming out of Washington at the same time as the ‘security concerns’ and said that far from reassuring the public, they collectively added to uncertainties and damaged the system.

At the World Trade Organization itself the staff and several of the diplomats were complaining that if the Americans had a real security problem - and knew more than they are willing to tell - they should act in the matter, rather than spread such stories that aroused alarm everywhere.

Some diplomats from the western hemisphere referred to reports that the American team would be coming with gas masks (against anthrax) and other rumours, asked what the other delegations were expected to do or how all this would be viewed by the public.

Meanwhile a number of countries, particularly from Asia and Africa, have spoken at the General Council, both expressing their criticisms and concerns at the way the revised ministerial draft declaration has been prepared and presented to them, as also the attempt to send the single draft to Doha, without fully indicating the views of various delegations to various parts.

The whole text has mental square brackets, several noted, with Uruguay pointing out that the chair in any covering letter or annexed documents, could not merely present some of the views and objections to some paragraphs, thus misleading ministers that others had no problems.

However, some diplomats said, Harbinson from the start of the process, had shown that he had come to every meeting on every issue, with prepared conclusions in summing up that disregarded the contrary views at meetings, and showed little inclination to take account of them.

The Council which began the discussions around noon Wednesday (after the Quad had at the outset of the meeting blocked priority for the consideration of these documents), sat into the night, and resumed Thursday morning to hear views of delegations and groups of them.

In numbers, those that viewed the text as balanced and supported its being forwarded by Harbinson to Doha was larger than on the other side, the latter could not be just wished away.

Nor could the majors decide that this was an issue where they could resort to some voting to force their will on others, without ensuring that hereafter all issues would then be forced to a vote.

In meetings with several groups of delegations this week who met him to persuade him to present the views of others or write a clear covering letter setting out the differences on each para or issue, Mr. Harbinson was said by some of them to have become angry at the criticisms en insisting on his right to send the documents to Doha on his own.

In opening the discussions at the General Council on 31 October on his revised draft ministerial declaration, Harbinson of Hong Kong China (according to the draft note of Harbinson’s speech made available to the media) told the members that the consultation process had been taken forward as far as they possibly could, that no useful purpose would be served by continuing the consultations, and that they did not “plan to revise these texts further” but intended to transmit them Ministers “on our own responsibility.”

The position taken by Harbinson and Moore is however contrary to what Harbinson had said about the process and his intentions when he put forward on September 26, the first draft of the Ministerial Declaration - Job(01)/140. In that covering note to his first draft, Harbinson had said:

“The attached draft Ministerial Declaration is submitted for the consideration (emphasis added) of delegations by the Chairman of the General Council in cooperation with the Director-General. It represents what they judge to be the best possible basis at this present time for reaching an eventual consensus on a balanced text to be put before Ministers in Doha.”

Neither Harbinson nor Moore had claimed at that time that they intended to move forward without specific consensus, even for presenting the documents to Ministers on their own responsibility.

Asked about the rule and authority for Harbinson and Moore to forward to Ministers documents without specific authorization, WTO Spokesman Keith Rockwell said on Wednesday evening that their research showed a “degree of inconsistency” in procedures, but that “flexibility” was the watchword.

Though neither the Marrakesh Agreement nor the rules of the General Council and the Ministerial Conferences contain any specific rule to deal with the kind of situation now facing the GC (namely, the asserted claim or right of Harbinson and Moore to forward documents on their own to the Ministerial Conference, the Articles of the Marrakesh Agreement and the Rules of Procedure could lave no one in doubt. The rules of procedure (rule 33) of the General Council requires that body to take decisions in accordance with the decision-making processes of the Agreement and the practice of the GATT 1947 for taking decisions by consensus.  Where consensus could not be reached, the Marrakesh Agreement provides for decisions by voting.

While the Rules of Procedure of the Council sets out the functions of the General Council chair, they enable the chair to conduct of proceedings in the General Council. In fact when the subordinate bodies are unable to make reports, the chair of that body is authorized to submit oral reports on his own authority. The powers of the DG are confined to the convening of meetings by issue of notice and proposed agenda. The DG is assigned no other function.

And in a rules-based organization, set up by a treaty, the officials of the organization, whether from the secretariat or chairing any body, draw their authority only from the rules, and not inherently.

If a chairman exceeds his authority in the conduct of the business, it can be challenged in the meeting and, if necessary, decided by a vote in that body.  There are no inherent powers, except perhaps of keeping order inside a meeting, and adjourning it in the event of disorders.

Meanwhile, there were indications that Harbinson and Moore planned to push through the texts and the various formulations at Doha, through several informal ‘green rooms’ - though the Qatar minister and chairman of the Conference had told a group of journalists in October that he would not agree to any such any small negotiating groups or process.

A number of countries who spoke making detailed comments were both critical of Harbinson’s revised draft as well as his intention to forward the text on his own to the ministers without specifying under each subject the contrary views of delegations.

A number of countries who spoke wanted particularly the texts or a covering letter to reflect their opposition to the negotiations on the Singapore issues, and the process intended to be followed in terms of the work programme, as well as the Chair’s ignoring the views of the LDCs, Africa and several others for a study process on the market access for non-agricultural products.

Tanzania speaking for the Least Developed Countries complained that the centrality of development and the development agenda had been ignored and not found an adequate place in the text. The LDCs were also critical of the Chair for having ignored their views for a study process on the market access for non-agricultural products and the continuation of the studies on the Singapore issues without any commitment to negotiations.

Almost every developing country that spoke also was very critical of the failure to agree on a draft declaration on TRIPS and Public Health.

Nigeria complained that Harbinson had ignored the Nigerian request to clearly show differing views and proposals by placing them within square brackets and that the revised draft gave the misleading impression that the whole membership had agreed, even if the covering note now said this was not the case.

“We have not agreed to this draft,” Nigeria said. The draft was not balanced but one-sided and it was not clear either to Nigeria how he proposed to deal with various interventions on the draft in the Council, and repeated the request that the differing views should be brought before the Ministers.

On the new issues, Nigeria repeated its objections to take them up for negotiations, as also to the move for the socalled ‘opt-in/opt-out’ concept.

Zimbabwe, speaking for the Africa group, also expressed disappointment with the shortcomings in the declaration. Different formats had been used, presenting a clean text without alternatives for the draft declaration, and one with alternatives for TRIPS and Public Health. The revised draft did not reflect the sizeable number of positions of African countries, supported by a large number of other developing countries, on the TRIPS and Public Health issues. The new draft did not also present the clear options on the four Singapore issues.

The African group would still want the Chair to obtain the clearance of the General Council to present his texts on his own authority to the Ministers.  Also, the General Council had the responsibility to submit a report to the Ministers, and all the statements in the General Council should be formally brought before the Ministers.

On the organization and management of the work programme, Tanzania insisted that the LDCs were not in a position to undertake such broad based negotiations and repeated the call of the LDCs for a programme of work that fitted with their capacity.

The text being sent to Ministers was “deceptively simple”, but full of mental square brackets. And while the ambassadors would be explaining the differences to their ministers, this ought to have been done by the Chair itself. The Tanzanian view was supported by Zambia, which expressed its extreme disappointment with the text. The priorities and needs of the LDCs were being ignored and many new issues had been brought up for negotiations. Zambia also supported the proposal by Kenya and several other African countries not to proceed with negotiations on industrial tariffs, but rather first undertake a stud process.

Egypt complained that the issue of internal transparency was not only a matter of flow of information or expression of a Member’s opinion, but a process that would guarantee the participation of all Members in decision-making and ensure a sense of ownership by all Members of the final outcome. From this perspective, Egypt had been deeply astonished at the revised draft that ignored many of the views and positions of Egypt, as also of many other delegations.

The centrality of development had also been ignored, and only lip-service being paid to a socalled “development round” and concerns of developing countries were not adequately reflected in the Revised Draft Declaration. On the Singapore issues, Egypt had repeatedly said they were not yet ready to participate in negotiations and had wanted a study process to continue, but this had been ignored. The Singapore mandate on need for explicit consensus but the new issues were taken up for negotiations was also ignored. And the Revised Text provided for a possibility for what has been labelled during the consultations as an “Opt-in/Opt-out Approach” in the areas of Investment and Competition, despite repeated warnings that proliferation of plurilateral agreements will definitely undermine the multilateral nature of the organisation and the very credibility of the Multilateral Trading System. Egypt had also supported the African proposal, supported by the LDCs and several other developing countries for a study of the effects. But this too had not been reflected. And there was also the reference to “High Tariffs”, when this had been opposed by many developing countries.

India, in its statement, raised serious concerns with the way the four Singapore subjects had been dealt with and said it was ‘deeply disturbed’ and could not accept explicitly or implicitly negotiations on the four subjects. India was also strongly opposed to the negotiating option of the so-called “opt-in/opt-out” approach in respect of investment and competition. Despite all this, the text had now left out all the options, and presented a clear text for negotiations. The Singapore declaration provided for negotiations only on the basis of consensus, and yet all the four subjects were not put up for negotiations, though there was no consensus on any of them. The proposals for organisation and management of the work programme also continued to cause concern. India also expressed its concerns and problems with the draft ministerial text on TRIPS and Public Health, and with this text alone presenting two opinions to ministers. On the issue of the transmission of the text to Ministers, India insisted that the purpose of the preparatory process was to agree as much as possible and where there is no agreement, give options to our Ministers as much as possible and where there is no agreement, give options to our Ministers or put the controversial language in square brackets so that the Ministers could focus on the differences and take appropriate decisions.

By opting for a text which did not bring out the differences in crucial areas, especially in respect of new issues, the chair was forcing many delegations to put the entire text in square brackets. India also objected to the chair’s transmission of its text to ministers, and said as formulated it would disadvantage many members and their positions. The WTO is a forum for negotiations, and sometimes, “we acquiesce when a Chairman comes out with a text after wide ranging consultations.”

But now “we are dealing with a momentous issue, which will have tremendous impact on the commercial, economic and social life of billions of people, and not an ordinary issue.” India could not acquiesce in a situation where a draft ministerial declaration is transmitted to the Ministers without reflecting concerns and objections from a large number of countries including India’s.

The Chairman’s text for Seattle was transmitted with the consensus of the General Council containing various options relating to various issues in square brackets. It was now a fashion criticise that text saying that is was unmanageable, but “that text had the merit of not prejudicing anybody’s position.” By opting for a clean text without appropriately reflecting the different positions at least on major issues, the Chair had swung to the other extreme, and if appropriate revision of the text was not considered possible at this stage, at a minimum, there should be a clear covering letter as an integral part of the DMD explaining the main differences encountered and options suggested on critical issues during the preparatory process.

Kenya said that in the absence of a consensus, the entire text remained in square brackets. By transmitting the text to Doha without an agreement of the Council, and with a non-consensual document being transmitted under the title of the General Council, and a biassed text at that, would have serious consequences for the credibility of the multilateral trading system. Kenya also offered detailed comments critical of various parts of the latest draft and asked for all its views to be transmitted to the Ministers.

Indonesia did not agree with the claims of some members that the current draft was a balanced text, and said that serious problems faced by Indonesia with the earlier text had not been removed. In particular Indonesia was opposed to the Singapore issues being taken up for negotiations. Indonesia could not also agree with the current formulation on TRIPS, since it restricted the scope of public health only to access to existing medicines and research. As for the separate declaration, there should be clear political declaration of the right of countries to take measures for public health. Pakistan said that if the idea behind the declaration was to obtain a consensus, then the strong views by delegations, however small, would need to be accommodated. Pakistan could not also appreciate the inclusion of the para on Labour. And while it was willing to be flexible on transparency in government procurement and trade facilitation, it was not agreeable to have them brought under the dispute settlement system. Pakistan also had problems with the organization and methods of the work programme, and said it should be under the General Council and not the TNC.

In their own comments, the US and EC did not appreciate the critical comments and objections of developing countries and supported the Chair sending the entire documents to Doha on its own authority. – SUNS5001

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

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