Doha preparatory process delegitimised by deceit and duplicity

The whole legitimacy of the preparatory process at Geneva for the Doha Ministerial has been called into question by the manner in which the draft documents for the Ministerial were settled. Despite the clear absence of any consensus, the Chairman of the WTO General Council Stuart Harbinson and WTO Director-General Mike Moore refused to incorporate in the draft texts, or in separate texts forming part of the official documents or even in their letters under cover of which the texts were transmitted to the Doha Ministerial, the dissenting views of many developing countries on the key issues raised in the draft documents.

by Chakravarthi Raghavan

THE Geneva process, just about to come to an end, has been a ‘good one’ and has produced a packet that will provide a basis for Ministers to work on and make difficult decisions and tradeoffs at Doha, run by Ministers for Ministers and not a secretariat conference,’ the WTO Director-General Mike Moore claimed on 2 November at a press conference.

The press conference came after the General Council Chair Stuart Harbinson of Hong Kong China had ended the formal Council session on 1 November afternoon where he again claimed his right to forward and present any document or report on his own authority.

And on 1 November night, the special Council session (the mechanism created by the General Council to handle implementation issues) ended without adopting as intended the Harbinson-Moore texts, on the ground that one or two delegations had problems. Though no one in fact had formally objected, Harbinson did not declare a consensus, and apparently would not identify which delegation or delegations had problems with which part.

Both Harbinson and Moore have also in effect refused to incorporate in their texts, or as part of the texts in a separate official document, the views officially put forward by the individual delegations with a request that the views be forwarded as an integral part of his documents, so that Ministers could be aware of their interests.

Harbinson and Moore thus appear to have set the WTO on a collision course for Doha or one where more comprehensive negotiations than ever before could be launched, although these would be difficult to complete and subject the trading system to increasing hostility within countries, particularly large developing countries.

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

However, despite the pledge, 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 the Minister of Finance, Economy and Commerce of Qatar Yousef Hussain Kamal, the designated Chairman of the Ministerial Conference, dated 5 November, were issued to the members on 5 November evening. They merely outline the process adopted - and that too, full of suppressio veris and suggestio falsis. (See boxes for the text of the covering letters.)

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

In meetings in the week of 5 November with several groups of delegations who met him to persuade him to present the views of others or write a clear covering letter setting out the differences on each paragraph or issue, Harbinson was said by some of them to have become angry at the criticisms and insisted 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 (according to the draft note of his speech made available to the media) had told the members that the consultation process  had been taken forward  as far as it 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 to 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 26 September the first draft of the Ministerial Declaration. In the covering note to his first draft, Harbinson had said:

‘The attached draft Ministerial Declaration is submitted for the consideration 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 documents to Ministers without specific authorisation, WTO spokesman Keith Rockwell said on 31 October that their research showed a ‘degree of inconsistency’ in procedures, but that ‘flexibility’ was the watchword. (See box)

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 small negotiating groups or process.

Criticism of content and process

A number of countries who spoke at the 31 October-1 November General Council meeting making detailed comments were critical of both 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 wanted particularly the texts or a covering letter to reflect their opposition to negotiations on the Singapore issues, the process intended to be followed in terms of the work programme, as well as the Chair’s ignoring the views of the least developed countries, Africa and several others for a study process on market access for non-agricultural products.

Tanzania, speaking for the LDCs, 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 market access for non-agricultural products and for 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. Nigeria repeated the request that the differing views should be brought before the Ministers.

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

Zimbabwe, speaking for the Africa Group, also expressed disappointment with the shortcomings in the draft declaration. Different formats had been used, presenting a clean text without alternatives for the draft Ministerial Declaration and one with alternatives for the draft on 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 TRIPS and public health. The new draft did not also present clear options on the four Singapore issues.

The Africa 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 organisation 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 fit 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 himself.

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 study process.

Egypt complained that the issue of internal transparency was not only a matter of flow of information or expression of a Member’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, with only lip service being paid to a so-called ‘development round’, and concerns of developing countries were not adequately reflected in the revised draft declaration.

On the Singapore issues, Egypt had repeatedly said it was not yet ready to participate in negotiations and had wanted a study process to continue, but this had been ignored. The Singapore mandate on the need for explicit consensus for the new issues to be taken up for negotiations was also ignored. And the revised text provided for the possibility of what was labelled during the consultations as an ‘opt-in/opt-out approach’ in the areas of investment and competition, despite repeated warnings that the 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 of previous tariff cuts on developing countries. But this too had not been reflected. And there was also, in the same area of market access for non-agricultural products, a 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  ‘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 now put up for negotiations, though there was no consensus on any of them. The proposals on 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 among the drafts presenting two options 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 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.

‘Momentous issue’

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.

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 fashionable to criticise that text saying that it 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 draft Ministerial Declaration 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. Transmitting the text to Doha without an agreement of the General Council, and with a non-consensual document being transmitted under the title of the Council, and a biased 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 on TRIPS and public health, there should be a 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 paragraph on labour. And while it was willing to be flexible on transparency in government procurement and trade facilitation, it was not agreeable to having them brought under the dispute settlement system. Pakistan also had problems with the organisation and methods of the work programme, and said it should be under the General Council and not a Trade Negotiations Committee.

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

Chakravarthi Raghavan is the Chief Editor of the South-North Development Monitor (SUNS). The above is an edited version of an article which first appeared in SUNS #5001 and also incorporates material from SUNS #5002 and #5004.


Cover note on draft decision on implementation

‘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 organisation 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.’


A legally unauthorised act

THOUGH neither the Marrakesh Agreement nor the rules of the General Council and the Ministerial Conference contain any specific rule to deal with the kind of situation now facing the General Council (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 leave no doubt.

The rules of procedure (rule 33) of the General Council require 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 set out the functions of the General Council Chair, they enable the Chair to conduct proceedings in the General Council. In fact when the subordinate bodies are unable to make reports, the Chair of that body is authorised to submit oral reports on his own authority. The powers of the Director-General are confined to the convening of meetings by issue of notice and proposed agenda. The Director-General is assigned no other function.

And in a rules-based organisation set up by a treaty, the officials of the organisation, 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 disorder.   


Cover note on draft declaration

‘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, authorised the Chairman of the General Council, in cooperation with the Director-General, to start consultations on both organisational 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.’