Provide options to Ministers on ‘sensitive’ issues, GC chair told

by Chakravarthi Raghavan

Geneva, 25 Oct 2001 - - As the informal HOD consultation process at the WTO in the preparatory process for the 4th Ministerial meeting was coming to a close, the chairman of the General Council, who has been trying to draft a declaration, has been told that on a number of ‘politically sensitive’ issues there are some sharp differences among members and his draft (without options for ministers) should not prejudice the positions of members.

The General Council chair, Mr. Stuart Harbinson of Hong Kong China, who has been holding consultations at Heads of Delegation meetings (in a relatively small room, where often there is standing room only, making it difficult for delegates to follow others or make their points clear to Harbinson and the secretariat), has announced that he would issue revised texts - one for a Draft Ministerial Declaration on negotiations and a work programme, another on implementation questions, and a third Ministerial Declaration on TRIPS and Public Health/Access to essential medicines.

The HOD meetings were due to end by about forenoon of Thursday, to give time to Harbinson to draft the documents and give them to delegations (some time late in the evening of Friday).

Harbinson has been repeatedly stating that his next draft would be neither a compilation nor a compendium of suggestions, but one which, in his judgement, would command a consensus - thus implying that while he has been hearing the views at the consultations, he would produce a text with his own formulations on various issues, but without any alternative options. His original text had options on only two new Singapore issues, investment and competition, while on all others it was a ‘work programme’ for negotiations.

However, in the consultations so far, specific objections have been voiced by a number of developing countries on a number of issues showing that even by a head count of delegations, there are serious divisions: on the preambular part about the assessment, on environment, on coherence and collaborations amongst the WTO, IMF and World Bank, on any reference to labour standards; in the ‘work programme’ on anti-dumping and other rules being used against the developing world, on the market access for non-agricultural products (where contrary to the myth spread, as Turkey pointed out last week, besides Turkey and Venezuela and conditionally India, a large number of countries including the African group and the LDCs have objections over negotiations), on the TRIPS issues, on all four Singapore issues (investment, competition, government procurement and trade facilitation); and on the whole approach to organization and method of running the work programme and negotiations.

The HOD consultation process, and sub-processes, are being run in such a way as to put to shame even the old GATT and its secretive ‘green room processes’ - and in such a crowded room that only a few even know the positions on each subject of various others, and few media are indefatigable enough to talk to and dig out information from delegations, but depend on some inadequate media briefings that easily mislead the public.

However, at an HOD meeting Wednesday night, the Malaysian ambassador to the WTO, Mr. Supperamaniam told the General Council Chair, Mr. Stuart Harbinson, that in bringing out his next draft, he should not prejudice the position of delegations on various issues.

The declaration and the proposed work programme covered many highly sensitive issues for countries, and ministers meeting at Doha need to be given clear options, he said.

The Malaysian envoy then went on to list paragraph by paragraph, issues where there were clear division of opinion and the HOD meet has brought out differences of substance: environment, all the four ‘Singapore issues’, anti-dumping rules, labour standards, implementation issues, TRIPS and public health issues, and the processes envisaged for the work programme.

Though Supperamaniam spoke for Malaysia, several trade diplomats of the developing world, said Thursday morning that his views, presented in a very articular way, reflected the positions of several others in the developing world, and was also probably significant, given the confusion being created by the misinformation on the positions of countries (via the pro-WTO media), as well as the press reports from out of the Shanghai APEC meeting about the comments to newsmedia there by the Malaysian Trade Minister, Mrs. Rafidah Aziz and that of the Prime Minister, Dr. Mahathir Mohammad in his address on Globalization to the APEC Forum of Chief Executive Officers.

About that APEC meeting and the alleged views of trade ministers and heads of delegations on the substantive issues at the WTO, the best commentary came from one of the best informed foreign correspondents from that area, Mr. Philip Bowring, who wrote this week in the International Herald Tribune: “...At the Shanghai meeting, the economic raison d’etre of APEC received scant attention.  There was agreement on the importance of the WTO’s ministerial meeting but no APEC contribution to resolving the wrangles over its agenda. Some members seemed to attach more importance to getting the meeting moved from Qatar to Singapore than to achieve a successful outcome.”

Meanwhile, the attempt to evolve a compromise text on a Ministerial Declaration on TRIPS and Public Health appears to have collapsed Wednesday in the face of the US and Swiss positions, supported by a small group of rich industrial nations, including Australia and a few others, to formulate the declaration in such a way that far from assuring flexibility and enabling governments to act for safeguarding the public health in countries, it would have further restricted the rights in determining exhaustion of rights, situations and conditions under which they could issue a compulsory licence, and even the sovereign right of countries to determine ‘national emergencies’

As one developing country negotiator put it, “the very countries who had no hesitation in declaring national emergencies to enable marketing of generic drugs, and take away the patent rights of Bayers and got that company to offer the product at ‘heavily discounted prices’, because of the deaths of less than half a dozen persons due to anthrax in North America, are challenging the right of developing countries to ensure medicines at affordable prices for the diseases affecting millions of their citizens.”

The kind of ‘compromises’ for a ministerial declaration on this question, being endlessly formulated by the secretariat (already reflecting the pharmaceutical industry point of view), and changes to them suggested by the US and Swiss, are so farcical that key negotiators from the South have rejected the idea of a declaration - that would merely be useful to the majors, the pharmaceutical industry and the WTO secretariat to promote their public image and mislead the public about WTO and TRIPS working for public health.

All the three ‘drafts’ to be given to delegations Friday night have to be formally placed before the General Council meeting on 31 October, and have to be cleared for being forwarded to the 4th Ministerial Conference, along with the accession documents for admission into the WTO of China and the Taiwan Province of China.

The last two, totally non-controversial at this point - have been cleared by the working parties on 17 September. However, a General Council meeting to formally transmit these documents to the next Ministerial Conference has been held up - as a result of Harbinson rescheduling the formal General Council meeting set for earlier this month, to 31 October.

Whether this delay in transmitting the accession documents, has been merely due to the rescheduling of meetings to allow for the consultations, or to force the hands of those having serious objections to the declarations, nevertheless having to swallow them and enable the chairman’s texts on his own responsibility to go before the Ministers, waiving the 10-day notice of procedural requirement for agenda proposals and documents, is not clear.

Given the growing impression, among delegations and competent observers of the Machiavellian/Maineachean ways of the secretariat and the majors, such a suspicion will remain.

An example of the lack of bona fides of the majors came out Thursday morning, in the Harbinson consultations on para 10 of the declaration (relating to implementation), and the implementation decision itself, trade diplomats reported.

In the Harbinson-Moore draft presented in September, there were two annexes, one for immediate decision by the General Council, and the other recommending such a decision at Doha. In fact the two of them together are empty of substantive content, and merely asked some things to be done by subordinate bodies or couched others in some best endeavour language like ‘should’.

At that time, the impression was left that all other implementation issues would be taken up in the negotiating process and addressed - with developing countries demanding that this should be with a time-bound (one year) priority work programme, and the others seeking to make it part of the new round and its ‘single undertaking’.

Harbinson reportedly proposed Thursday morning some minor changes to his Annexes I and II, which he has indicated would now both be merged (presumably for ministers to decide at Doha), and that all other implementation issues would be in a work programme, and that at the end of a year a report should be prepared for appropriate action.

In the earlier consultations on this, Canada and Japan had said that not all ‘implementation’ issues raised by the developing countries (and included in two paragraphs of the Mchumo text for Seattle) would be automatically included in the negotiating process for the next round.

In repeating this position more clearly Thursday, Canada (which others interpreted also was speaking for the Quad countries) is reported to have said that the one-year work programme should lead to identification of the issues, and those of them on which there was consensus would go for negotiations (while others would drop off the table).

This appears to have provoked quite an outburst, with the Norwegian ambassador who in 2000 had spent considerable time and energy in trying to resolve these implementation issues, as part of a confidence-building package, making some strong comments. The Brazilian ambassador, Mr. Celso Amorim, who does not normally use harsh language, burst out with the comment that this would amount to cheating and double-crossing (the developing countries).

The formulations tested out Thursday by Harbinson did not by itself have any such qualification as the interpretation given by Canada. However, if the text to be formulated by Harbinson and given on Friday evening contains the same formulation, without making clear that all the issues not dealt with in Annexes I and II would be negotiated, then the developing countries would again be cheated.

For, such a formulation would give scope for further endless arguments about what is to be negotiated or rebalanced, and the issues on which there is consensus for taking up negotiations!

This would mean that what is writ in the WTO agreements will not be changed, to correct the existing texts for their deficiencies, imbalances and inequities - despite all the talk of the past 4 years. It would prove the bad faith of the majors who for two years have been arguing that these could be addressed only in the wider context of a round. And now that many seem to be reconciling themselves to a force majeure of the US and EC, in the aftermath of the attack on the twin towers and their collapse, to launching a new round and may be new issues too, the implementation issues are threatened to be taken off the table one year after Doha!

According to participants, at the HOD meeting Wednesday night, the Malaysian ambassador said that the WTO and its processes were at a critical juncture.  While progress had been made in the consultations on the basis of the Harbinson texts, substantive differences remained. He went on to list the subjects on which he felt there was no consensus, but strong division of opinion, and on which Harbinson’s revised formulations for Ministers should not prejudice the positions of members:

·        Environment - there is no consensus on taking up negotiations, as the EC wants. At the most they (Malaysia and others) were willing to look at the issues in a work programme, but there was no automatic commitment to take up them up for negotiations.

·        Singapore issues - they wanted a continuation of the ‘educative’ process. They were willing to look at a two-stage approach, provided the decision to launch negotiations can be taken only by the Ministers at the 5th ministerial conference. The opt-in, opt-out approach broached by Harbinson during consultation posed difficulties and would prejudice others. Malaysia would be willing to study the proposal, but the initial reaction was that it could not be part of a ‘single undertaking’.

·        there is need for specific formulation that the anti-dumping issues would be taken up for negotiations.

·        labour standards - there was no need for mentioning the subject in the preambular para.

·        on para 10, implementation, there has to be an understanding that the outstanding issues, after an appropriate process of consultations, would go to negotiations, and would be identified as an appropriate element for an ‘early harvest’, and the negotiations ‘mainstreamed’.

Attempting to gloss over the differences would be counter-productive. Where there were fundamental differences, the text should present clear alternatives, reflecting the situation on the ground.

In the oral explanation of his ‘deferred opt-in, two-stage negotiations’ approach (on investment and competition policy) put forward on Tuesday, Harbinson would appear to have said that this approach was aimed at reconciling the different positions of members on what was admittedly a difficult area for some Members. The main features of the Harbinson approach, spelt out orally, were:

1.   Agreement that negotiations in these two areas are open to all Members;

2.   There would be two phases with the first phase lasting till the 5th Ministerial Conference, to be devoted to clarification of elements. This could also be described as the pre-negotiations phase, although some others could characterise it as negotiations itself;

3.   The second phase would be the negotiating phase, aimed at establishing a framework of rules in these two areas. It would involve only those Members who notify their intention to opt-in, and this to be done either by the 5th Ministerial Conference or later. In other words, there would be an explicit opt-in mechanism;

4.   Even those Members who opt-in can later change their minds and opt-out;

5.   The approach would be multilateral with substantive obligations, as far as possible, to be made available on an MFN basis even to Members who have opted-out; and

6.   This would be part of the single undertaking and would provide the link with the rest of the negotiating agenda.

At the meeting where he formulated it, India, Zimbabwe for the African members and Tanzania for the Least Developed countries, all opposed it - with Zimbabwe and Tanzania citing respectively the Abuja and the Zanzibar declarations of their Ministers that they were not willing to take on more obligations, and the four subjects should continue to be part of the WTO study/educative process.

Brazil and Malaysia had asked questions for further clarifications. They are yet to come. – SUNS4996

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

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