Moore pushes for quick talks on old, new issues

by Chakravarthi Raghavan

GENEVA: Hardly has the 4th Ministerial Conference ended than there are signs that the WTO secretariat is trying to hustle Member countries into taking quick decisions on the negotiations under the Doha work programme and starting the process of negotiations on the new issues.

Several trade ambassadors said on 19 November that Director-General Mike Moore is, citing the Uruguay Round model of the old GATT, promoting himself as the head of the Trade Negotiations Committee which is to supervise the overall conduct of the talks.

There were also some indications that on the four Singapore issues, the secretariat may proceed on the basis that full-fledged negotiations on these had already been launched at Doha, notwithstanding the clarifications and understanding put forward by the Chairman of that conference.

Doubts over clarification

Some contrary interpretations have already been voiced on the clarificatory statement made by the Chairman.

Inside US Trade, a Washington-based publication which trade diplomats in Geneva read avidly and with care, considering it to be a publication that authoritatively reflects the views of the US Trade Representative, in a 14 November story from Doha, had reported that the conference “concluded ... after India succeeded in obtaining a statement from the conference chair clarifying the final declaration ...”. The journal said that the statement ensured that WTO Members must affirmatively decide to have such negotiations at the next Ministerial in 2003 before they can be launched, according to the Chair, Qatari Trade Minister Youssef Kamal.

At Doha itself, Kamal, at a press conference after the closure of the Ministerial, made clear (according to the Inside US Trade report of 14 November) “that his statement was made on behalf of the WTO, and did not represent a personal statement.”

In another report dated 15 November, Inside US Trade noted the Indian view that the statement from the conference Chair “reverses the presumption in the final declaration that negotiations on government procurement, trade facilitation, investment and competition have been launched at Doha,” and said: “But a US official insisted that the final declaration is the ‘governing’ document for the ministerial, implying that the declaration carried more weight than the statement by Qatari trade minister Youssef Kamal in his role as the ministerial’s chair. The official said that the declaration launches negotiations in those four areas but that ministers will make decisions on the subject matter and methods of negotiations at their next conference in 2003.”

The WTO’s official website has contributed its own little part to the disputes and confusion. Initially, in a posting at the section “Doha WTO Ministerial 2001: Summary of 14 November”, the WTO had said that the clarification was made after the adoption of the declaration! This is how the relevant paragraph read:  “After the declaration was adopted, the chairman, Minister Kamal, explained his understanding of the mandates on investment, competition policy, transparency in government procurement and trade facilitation. This, together with all the other statements made at the closing plenary session, will appear in the record of the meeting.”

However, on 21 November morning, the posting had been changed, without any explanation or indication, and read: “Before the declaration was adopted, the chairman, Minister Kamal ...”

At the final plenary of the conference (which was video-broadcast live on the Internet by webcast), Kamal had in fact first placed before the meeting the documents - the two Ministerial Declarations and the decision on implementation - citing them by their official document numbers, and read out some corrections for the French versions (which had omitted the formulations about modalities on trade and investment), and then made his statement of clarification, before asking the meeting to adopt them.

In normal GATT practice, when the Chair makes a statement of his understanding before adoption, the documents adopted are considered as subject to or qualified by the understanding.

And generally, agreements including understandings are worked out in prior formal or informal, but closed, meetings, and the public meeting (like the final plenary) is more of a (misleading) exercise in transparency.

In this particular case, at the heads-of-delegation meeting convened on 14 November afternoon, the leader of the Indian delegation, Minister Murasoli Maran,  had said that India was unable to join the consensus. Cuba (despite considerable threats to it from the US and EC) spoke up taking the same position as India, and nine others had said they shared India’s concerns. In the end the HOD meeting would appear to have been adjourned, with a statement by the Chair about holding the final public plenary.

(Immediately stories were planted in the media and relayed across the world, about India being the spoiler and the recalcitrant; the Western media and the WTO’s top officials and  EC officials went to town on this basis.)

Kamal himself appears to have initiated behind-the-scenes efforts to see what could be done to avert a collapse. No one knew what exactly Maran would do and whether he would stand alone to say “No”. (Interestingly, Celso Lafer, the Foreign Minister of Brazil which supported the declaration, told the media that if the EC could take a position to defend the national interests of the EU, he did not see why India did not have the same right to defend its national interests.)

Other experts and observers familiar with the old GATT practice, like BL Das, said that the Chairman’s “clarification” of the language in paragraphs 20, 23, 26 and 27 of the declaration, and his terming it as “his understanding” and providing it before adoption of the documents, without anyone challenging it, would, in normal GATT/WTO practice, make it binding on the WTO process and would technically be considered to qualify the meaning of the language in these paragraphs. Thus, in this case, it would be necessary to have an explicit consensus before negotiations on the four Singapore issues “could proceed”.

However, from a practical point of view, it should be borne in mind that although the Singapore decision on these four subjects had itself included a stipulation about “explicit consensus”, this did not discourage the developed countries at Doha from pressurizing those Members which were not quite willing to join the consensus.

Now, while it may be open to the next Ministerial Conference to take a view of what was said and decided at Doha, trade diplomats said that there were indications that the secretariat, led by Moore, would perhaps try and push the issue even at the outset.

There is the general view prevalent outside that though the EC has been pushing the investment and other new issues, it has been more to stall the agricultural negotiations, and that this was why everytime there was an indication that developing countries must compromise, the EC had ‘upped’ its demands.

In so far as agriculture and services are concerned, some amount of preparatory work has been done. On another front, the TRIPS-mandated reviews and negotiations are not expected to get very far. While a number of developing countries and some developed countries like Switzerland are pressing for the talks on geographical indications of origin, Argentina and Australia have let it be known that they will withhold consensus and resist negotiations, without fear of anyone accusing them (as India experienced in Doha) of ‘spoiling’ things. How this will eventually shape up is not clear.

Non-agricultural market access

An area where negotiations have been set under the Doha work programme without much controversy is “market access for non-agricultural products”.

Here, on the one hand, the mandate spelt out in para 16 of the Doha Ministerial Declaration has cast the negotiations in terms of Art. XXVIII bis of GATT 1994, which provides for general tariff negotiations. (Before this article became a part of GATT in 1965, GATT had no provision for such multilateral negotiations on tariffs, only individual bargaining between countries, which thus necessarily involved reciprocal concessions.) Art. XXVIII bis provides in its para 2 for multilateral procedures in such negotiations for reduction of duties and bindings, etc. Its para 3(b) also provides for taking account of special needs of less-developed countries (developing countries) for more flexible use of tariff protection to assist economic development and special needs of tariffs for revenue purposes.

The mandate on non-agricultural market access also has specific reference to para 50 of the declaration, which calls for negotiations under the work programme to take into full account the principle of special and differential treatment for developing and least developed countries embodied in: Part IV of GATT, a 1979 Decision of the GATT Contracting Parties generally known as the Enabling Clause, and the Uruguay Round Decision relating to LDCs.

However, a last-minute intervention in the green room may have complicated the mandate in this area. This intervention, apparently by the Egyptian Trade Minister, introduced into the mandate the idea of “less than full reciprocity” in tariff reduction commitments, a term which defies any definition or description. Intended by Egypt perhaps to further strengthen the case of developing countries against reduction of industrial tariffs, it may, however, produce some conflicting interpretations, as the US and EC try to use the mandate to break open developing-country markets for their corporations and force developing countries to reduce tariffs to very low levels to prevent the kind of  protection that their own industries had enjoyed at equivalent stages of development - thus sending Third World domestic enterprises to the wall.

Side by side, there is a provision for modalities to be agreed for appropriate studies and capacity-building measures to assist LDCs to participate effectively in the negotiations on non-agricultural market access. It is not very clear what this entails exactly, but it is on the basis of this and other such provisions about technical assistance that Tanzania, the LDC spokesperson, appears to have given up the earlier stand of the LDCs taken at their July ministerial meeting in Zanzibar. There, the LDCs opposed any negotiations or commitments on non-agricultural market access before a study is completed on the effects on the LDCs and other developing countries of past trade liberalization and tariff cuts (orchestrated by the IMF and World Bank under structural adjustment programmes), which are generally seen by African domestic enterprises and governments as having resulted in the deindustrialization of African economies. A similar view was also taken at the African trade ministers meeting at Abuja.

The formulation agreed in the Doha declaration could well result in an attempt to divide Africa as between the LDCs and non-LDCs.

As an African trade ambassador commented, on condition of anonymity, the carefully prepared African positions based on studies and technical expertise got undone - setting back African development - in the space of less than half a night at Doha when some ministers were put together into the “green room”, bereft of even the counsel of their advisors. (SUNS5014)

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