WSSD survives WTO takeover

At the Johannesburg Summit, attempts to give the rules of the World Trade Organisation supremacy over other international treaties and organisations were narrowly averted.

Martin Khor

ATTEMPTS during the World Summit on Sustainable Development (WSSD) to place World Trade Organisation (WTO) rules in a superior position vis-ˆ-vis other international agencies and treaties were averted at almost the last hour when NGOs and a few countries fought what looked at one stage like a ‘losing battle’.

In the end, the phrase ‘while ensuring WTO consistency’ was deleted in an important sentence dealing with the need for mutual supportiveness between trade, environment and development.   If it had not been eliminated, this would have become a disastrous outcome of the WSSD.

The deletion was agreed to (despite a general ruling that nothing in the text should be changed) after an impassioned plea by the Ethiopian delegation, and after a spirited and intense lobbying effort by many NGOs.

Negotiating battle

It was one of the most important and dramatic of the WSSD’s negotiating battles. It would have a critical bearing on how the relationship between the WTO and other international agreements and institutions would be treated in future.

In essence, the issue was this:  When conflicts arise between WTO rules or principles, and those of other organisations (especially those in the UN family), should these be sought to be settled by examining the merits of each of them on an equal basis, or should the WTO be given a superior status?

This issue became the subject of heated debate inside and outside the negotiating halls on the last days of the Summit, due to the existence of some paragraphs in negotiating texts on the trade part of the ‘means of implementation’ chapter of the WSSD’s Plan of Implementation.

In a negotiating draft on trade dated 29 August (8pm), the chapeau to paragraph 19 read:  ‘Continue to enhance the mutual supportiveness of trade, environment and development in a manner consistent with WTO  rights and obligations, with a view to achieving sustainable development, including through actions at all levels to:’

Below this cheapeau were sub-paras on four issues, including the need to reform  subsidies that have negative environmental effects; cooperation on trade, environment and development between the secretariats of the WTO, UNCTAD, UNDP and UNEP;  and the use of environment impact assessments to identify trade, environment and development linkages.

NGO experts on trade and environment actively lobbied various government delegations to delete the words ‘in a manner consistent with WTO rights and obligations’ on the ground that this would give undue advantage to the WTO rules vis-a-vis the objectives and provisions of other agreements such as the Convention on Biological Diversity (CBD).

However, another version of what was termed the ‘compromise text’ on trade was produced dated 31 August (6pm) in which the words ‘while ensuring WTO consistency’ replaced ‘in a manner consistent with WTO rights and obligations’.  This language was retained in a subsequent draft of 1 September.

It was widely believed that the ‘compromise text’ was drafted by South African Trade Minister Alec Erwin.  Initially the negotiations were confined to a small group of countries, including the EU, the Group of 77 (G77) and China (in which Brazil, India, Venezuela, Malaysia played important roles), Australia (which strongly favoured the WTO-consistency text),  the US (which was widely believed to be behind Australia) and Norway (which was one of the few countries that openly opposed the term ‘WTO consistency’).

The key delegations were requested to take the whole compromise text on trade as a package, without changing anything in it.

In the afternoon and night of 1 September, a growing number of NGOs actively lobbied the G77 countries and the European countries to delete the phrase ‘while ensuring WTO consistency’. Among the NGOs were the Third World Network, Friends of the Earth, the Norwegian Network on Environment and Development, African Trade Network, Eurodad and Greenpeace.

They argued that ‘ensuring WTO consistency’ in any future discussions or negotiations involving the relationship between trade, environment and development would prejudice and bias the discussion towards acceptance of WTO rules.  This would endanger the status of multilateral environment agreements (MEAs) as well as resolutions, declarations or agreements arising from other agencies such as the World Health Organisation (WHO), the UN Commission on Human Rights, and meetings and conferences of the UN General Assembly itself and its bodies.

Superior status sought for WTO

The fact that ‘trade, environment and development’ were mentioned made it worse, as not only environment issues and proposed measures would be subjected to the WTO-consistency test, but also trade issues and development issues and measures (including health, other social issues, as well as economic issues and human rights).

For instance, there is a well-known conflict between the objectives and provisions of the CBD (especially those relating to national sovereignty over biological resources, access and benefit-sharing, traditional knowledge and the rights of indigenous and local communities) and the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) (which mandates national treatment for patents which are compulsory for some kinds of biological resources, and whose criteria and procedures are biased towards private, corporate and institutional patent applicants and against the inter-generational, cumulative and community-based nature of local community innovations).

The contradictions between the two, and efforts to ‘harmonise’ them are being discussed both at the WTO and at the CBD.  Several developing countries have been trying to advocate that the contradiction be resolved by clarifying or amending TRIPS in order to conform to the objectives of the CBD, but this is resisted by the major developed countries that prefer the status quo or that prefer that the conflict be resolved in favour of TRIPS.

The term ‘while ensuring WTO consistency’, when applied to enhancing mutual supportivenes of trade, environment and development, would be a clear indication from the Summit that the WTO should be given the superior status in relation to other agencies and other agreements or declarations.

The NGOs also pointed out that the World Health Organisation and its World Health Assembly had been active in support of compulsory licensing and other measures to override patents on vitally needed medicines in order to make them affordable to patients. In recent years, the UN Commission on Human Rights had also been critical of several aspects of globalisation, including the WTO agreements on intellectual property, agriculture and services. On trade and development issues, the UN Conference on Trade and Development (UNCTAD) (especially in its Trade and Development Report) had been critical of several aspects of the WTO rules and principles which handicapped developing countries.

If in the efforts to be ‘mutually supportive’, the UN agencies and the multilateral environment agreements had to give way in order to ensure WTO consistency, then all the goals and measures in the environmental, trade, development, social and human rights arenas would have to be adjusted to fit into the WTO framework, and would become distorted in the process.  For example, in the examples above of conflicts between different goals and agencies, the CBD, WHO and Human Rights Commission would find themselves under much greater pressure than before by developed countries to give way to the WTO, should their rules or proposed measures be seen to be ‘WTO inconsistent’.

This would also give much greater credence to the many critics of the WTO who claim that this organisation is already usurping the rights of countries and of other agencies to make their own policies.

The NGOs argued that it was even more ironic and unacceptable if such a text were to be  adopted at a premier Summit of the United Nations itself.  ‘It is bad enough if this were agreed to at a WTO ministerial meeting, but it would be really too much for the UN to commit suicide by adopting a declaration that depletes itself of its own powers and willingly hands it over to the WTO,’ was how one NGO expressed the irony.

Whilst Australia was clearly advocating the ‘WTO-consistency language’ (and it was believed they were backed by the US), the EU told European NGOs that they did not mind deleting the phrase but that European countries were bound by the commitment not to change anything in the text.  Norway was then about the only country that clearly opposed the phrase.

The G77 position was complex. At first the leading developing countries in the negotiations on the trade section supported ‘ensuring WTO consistency’ as they thought this would protect them from unilateral trade measures against their products on environmental grounds.

However it was pointed out that the WTO already had adequate rules to take care of this, and that if this was the objective, then there could have been better drafting, such as ‘ensuring there would not be trade measures used as a pretext for protectionism’.  By a blanket use of ‘WTO consistency’, there would be negative fall-out against developing countries’ interests in non-WTO fora.

While appreciating these arguments, some of the countries felt they should stick to the text as any proposal for a change could unravel the text of the whole section, and open the road for issues such as labour standards (which had been ejected) to be re-introduced.

About 50 NGO participants held a silent protest outside the negotiating room by holding up small posters calling for deletion of  the ‘WTO consistency’ phrase, and their strong concerns were felt.

The negotiations took place in a small and thus crowded room, where only Ministers and two aides each were allowed.  There were unseemly and undignified scenes at the door, as security guards prevented many government delegates from entering the room, and there was much shoving and pushing as the ‘non-eligible’ delegates tried to push their way in while the guards pushed them back.  NGOs were not allowed in, unlike on the previous days when they were allowed to watch the negotiations.

Why a bigger room could not be allocated (as on previous nights) was a mystery.  Many delegations and NGOs alike were angered by the apparent attempt to limit participation and compared this to the tactics and scenes at WTO ministerial meetings.


Late in the night, a breakthrough came in the negotiations when two Caribbean countries announced they could not accept the language ‘ensuring WTO consistency’. Then Dr Tewolde Egziabher of Ethiopia (who also chairs the Africa Group in the Convention on Biological Diversity) gave an impassioned speech, in which he traced how at the Rio Earth Summit 10 years ago the discussions had really focused on biodiversity, the environment and the rights of poor countries and local communities, whereas now the narrow commercial interests of developed countries were being championed through the WTO and sought to be approved in such a high-level summit of the UN itself.

Ethiopia, he said, is a very poor country and its development is based on biodiversity and its communities’ rights over biodiversity, so he could not accept that the policies of poor countries and of the CBD and other agreements would have to subject themselves to ‘WTO consistency’.   Tewolde also announced that with regret his delegation would have to break ranks with the G77 over this issue.  His speech was met with loud applause, which could be heard from outside the room.

Following this lengthy and eloquent presentation, the Venezuelan Minister for Environment spoke on behalf of the G77 and said that in view of Ethiopia’s explanation, the G77 would also now like to have the phrase deleted.

The European Union then also agreed to dropping the phrase, and Norway again reiterated its opposition to the phrase. The meeting’s chairman, the South African Environment Minister, then announced that the phrase ‘ensuring WTO consistency’ would be dropped.

The final text, as approved in the final plenary of the WSSD on 4 September, appears as para 91 of the Plan of Implementation as follows:   ‘Continue to enhance the mutual supportiveness of trade, environment and development with a view to achieving sustainable development through actions at all levels to:’

Below this are four sub-paras on (a) encouraging the WTO committees on trade and environment and trade and development to identify and debate the environment and development aspects of the WTO negotiations so as to benefit sustainable development;  (b) support the Doha work programme on subsidies so as to promote sustainable development, and encourage reform of subsidies that have negative effects on environment and are incompatible with sustainable development;  (c) encourage efforts to promote cooperation on trade, environment and development between the secretariats of the WTO, UNCTAD, UNDP and UNEP and other organisations; and (d) encourage the use of environment impact assessments as a national tool to identify trade, environment and development linkages.

While a disaster was averted in para 91, nevertheless there was a setback in para 92 of the Implementation Plan. The para advocates mutual supportiveness of the trade system and multilateral environment agreements, in support of the WTO work programme.  This gives an unfair and undue advantage to the WTO’s programme whilst correspondingly placing the programme or decisions of the MEAs at a disadvantage.

For example, in the TRIPS-CBD relationship over the issue of intellectual property rights, there is a work programme in the WTO and a separate programme in the CBD. With honourable mention given to the WTO programme for support, the CBD’s work in this area is placed at a disadvantage. This blatant bias against MEAs is all the more ironic and unacceptable since the document is a product of a UN conference and moreover a conference that is supposed to be championing the environment.

Para 92 however also says, ‘while recognising the importance of maintaining the integrity of both sets of instruments’, which to some extent offsets the advantage given to the WTO work programme.

NGOs at the WSSD also lobbied to remove the phrase supporting the WTO work programme. However, the full para was approved earlier on, whilst  para 91 with the  phrase ‘ensuring WTO consistency’ was still open. The battle then focused on this para.