Following up on implementation issues
A leading trade expert puts forward some suggestions on how developing countries could effectively pursue their proposals on the ‘implementation’ issues.
Bhagirath Lal Das
THE developing countries made a number of specific proposals under the heading ‘implementation’ during the preparation for the 1999 Seattle Ministerial Conference of the World Trade Organisation (WTO). The Chairman of the WTO General Council included them in the text prepared for that meeting. The General Council has since started considering this subject, but the pace is slow. If the developing countries do not pursue them and push them forward, there is a fear that the proposals may just wither away or get superficial treatment, as has been the case with several proposals of interest to the developing countries in the GATT/WTO in the past.
To pursue these proposals effectively, the preliminary need is for the developing countries to be clear in their mind about the modalities of taking them up, the institutional arrangement for considering them and the strategies for a result-oriented handling of this subject. Some preliminary suggestions on these matters are given below.
While pursuing these proposals, it should be clear that they do not constitute on exhaustive list of ‘implementation issues’. More may come in the light of the continuing experience of the operation of the WTO agreements. For example, an important feature that is emerging in the process of the operation of the WTO’s dispute settlement panels and Appellate Body is that these bodies are fast turning into rule-making bodies, which they were never intended to be. They are expanding and contracting the rights and obligations of Member countries through very substantial interpretations of the provisions of the agreements. One would consider that this needs to be added to the list of ‘implementation issues’. There may be several such important matters to be included even during the process of consideration of the issues listed so far.
Types of issues
There are three types of implementation issues:
* those needing action or understanding by the developed countries individually, e.g., accelerated liberalisation in textiles, long gap between initiations of anti-dumping action on the same product from a developing country, etc.;
* those needing decisions and understandings in the General Council, e.g., higher de minimis levels in the case of anti-dumping actions against products from a developing country, longer duration of continuance of certain measures like trade-related investment measures (TRIMs) by the developing countries, etc.; and
* those needing improvement of some agreements, e.g., enabling developing countries to use subsidies for production and export for the purposes of industrial diversification and upgradation of technology, prohibiting patenting of life forms, etc.
It should be noted that this classification need not be rigid. For example, steps in the first category will be very much strengthened if, along with the action or understanding of individual developed countries, there is also a decision on such matters in the General Council. Also, improvements in various agreements may be effectively attained if Members, particularly the developed countries, formally abstain from taking counteractions, either by individual declared decisions or by decisions in the General Council.
What is, however, important is that all the implementation issues should be promptly taken up for consideration, action and decisions. And an issue should not be left out or given a low priority merely on the ground that it involves a comparatively more complex decision-making process.
Background and seriousness of the proposals
These proposals have been made by the developing countries in the light of their experience of the implementation of the WTO agreements over the course of nearly five years of their operation. The developing countries have found to their dismay that they conceded a lot in the Uruguay Round and got practically nothing in return. The implementation of some agreements has cast a heavy burden on their feeble resources. The implementation of some agreements by the developed countries has fallen far short of the expectations of the developing countries in respect of the benefits accruing to the latter. And some provisions of some agreements are highly imbalanced and iniquitous to the detriment of the interests of the developing countries. In this background, the developing countries’ proposals are anchored on the following broad objectives:
* saving themselves from unnecessary harassment, as in the case of the proposals in the area of anti-dumping, etc.;
* removing harsh constraints on their expansion of industry and trade, as in the case of the proposals in the areas of subsidies, TRIMs, etc.;
* preventing future damage to their agriculture, industry and trade prospects, as in the case of the proposals in the areas of technical barriers to trade (TBT) and sanitary and phytosanitary (SPS) measures;
* eliminating severe imbalances and inequities, as in the case of the areas of agriculture, services, trade-related aspects of intellectual property rights (TRIPS), etc.
The developing countries have given elaborate explanations and justifications from time to time for these proposals. Some of these have been included in the formal minutes of the meetings, though all of the arguments might not have been so covered. They, with some effort, can put together all of them in respect of the individual issues in their proposals. It will strengthen their position in the course of the consideration of the issues.
Appropriate mechanism and pattern of work
The appropriate mechanism for the consideration of the issues has to be determined. The most appropriate mechanism appears to be consideration and action in the General Council, where the matter has already been taken up. The primary role of the General Council in this regard is obvious, because these are not matters of technical detail, but of basic political understanding, commitment and balance. Of course, some detailed technical matters involved in these issues can be referred to the subordinate bodies with the stipulation that the conclusion of their consideration should be reported to the General Council within a specified time frame.
The General Council is considering the matter at a very general level at present. What is necessary is that it should take up intensive consideration of each specific proposal with the objective of arriving at a final position. In fact time targets should be worked out as is the case with other matters of importance in the WTO. It will naturally involve serious engagement of the developing countries with the developed countries and also among themselves. One way to speed up the process will be for the Chairman of the General Council to undertake serious consultations on specific proposals on a continuing basis. Such a practice is quite common in the WTO when the consideration of important subjects is to be successfully concluded within a set time frame.
On each proposal, the pattern of work will naturally consist of talks among interested countries to allow them to seek and offer clarifications and explanations, taking into account possible adverse implications and working out relevant safeguards. All this should lead to agreed results at the end.
Form of expected results
It is important to think about the form of the results and decisions. The results may be in the form of undertakings by the developed countries, implementable decisions in the General Council or changes in some provisions of some agreements. The developing countries need not feel diffident in seeking changes in the agreements wherever necessary and the developed countries should not feel hesitant in this regard. One possible line of counterargument may be that any change in the agreements should only come through a comprehensive round of negotiations. But it need not be so. After all, what the developing countries are asking for is not a renegotiation of the agreements, but only some changes here and there in order to eliminate or reduce the imbalances and inequities. Also it will not be correct for the developed countries to give to this exercise the shape of negotiations on a give-and-take basis and thereby to expect some concessions from the developing countries in return for these changes in the agreements. After all, the developed countries have derived great benefits from the agreements without having had to give up anything significant so far. Hence they should be willing to agree to these corrective adjustments.
Further, if there are insurmountable problems in bringing about formal changes in the agreements, the results could be in the form of enforceable declarations from the developed countries that they will not take trade measures for perceived violations of obligations of the developing countries in respect of these matters. (After all, there is the precedent in the GATT of the developing countries ‘disinvoking’ Article XVIII, i.e., agreeing to abstain from taking balance-of-payments measures even when they had the right to do so.)
It should be realised that the developing countries have their backs really to the wall in the WTO and their frustration is rising high. If it is expected that they should continue to be cooperative in international trade, they must be given some space and due consideration in the WTO. Their interests must not be ignored or sidelined any longer. Their proposals must receive at least the same serious treatment and urgent consideration as is given to the proposals of the major developed countries, for example in the areas of financial services, telecommunication services, information technology goods and electronic commerce.
Bhagirath Lal Das is a former Ambassador of India to GATT and former Director of the Trade Programmes Division of the United Nations Conference on Trade and Development (UNCTAD). The above is an edited version of a paper he presented at the TWN seminar on ‘Current Developments in the WTO: Perspective of Developing Countries.’