The Doha Ministerial Conference and After

The foregoing chapters of this report were prepared before the WTO's Fourth Ministerial Conference held in Doha, Qatar, 9-14 November 2001.  This Postscript provides a brief update.

The Doha Conference produced three main documents: a Ministerial Declaration (WTO 2001c); a Declaration on the TRIPS Agreement and Public Health (WTO 2001d); and a Decision on Implementation-Related Issues and Concerns (WTO 2001e). 

Regardless of their merits, the outcome documents were achieved through a non-transparent process in which the views of a large number of developing countries on some of the most important aspects (especially the new issues and elements of a new round) were not reflected in the various drafts of the Ministerial Declaration.  This gave rise to perceptions of manipulation and of bias of the system towards the major developed countries, and placed the concerns over the lack of transparency and democracy again in the forefront of the issues confronting the future of the WTO and the multilateral trading system.

The Ministerial Declaration has initiated a heavy work programme that places an onerous burden on developing countries, with which they will find it difficult to cope. Besides the already mandated negotiations on agriculture and services, and the already mandated reviews of the TRIPS and TRIMs agreements, the post-Doha work programme will include new negotiations on market access for non-agricultural products, negotiations on some aspects of trade and environment, negotiations to clarify some rules (including anti-dumping, subsidies and countervailing measures) and dispute settlement.  Also to be negotiated is the set of 'implementation issues and concerns' that developing countries had earlier put forward, and of which only a few items have so far been resolved.  The work programme also includes more focused discussion on the four 'Singapore issues' (investment, competition policy, transparency in government procurement and trade facilitation);   examination (in two new working groups) of the issues of 'trade, debt and finance' and  'trade and technology transfer'; and discussions on electronic commerce and small economies.

The negotiations are to be supervised by a Trade Negotiations Committee, and concluded by 1 January 2005, and the outcome of the negotiations shall be treated as parts of a 'single undertaking.'  According to C. Raghavan (2001j), the work programme is effectively an agenda for multilateral negotiations in at least 19 areas, larger and more intrusive, in terms of national economies and politics, than even the Uruguay Round agenda.

The most contentious aspect of the Doha Conference, and the preparatory process before it, involved the Singapore issues.  During the preparatory process, a large number of developing countries (mainly from Asia, Africa, the Caribbean and Central America) had made it known that they were opposed to the commencement of negotiations on these issues, and that instead the 'study process' on these subjects should continue in the WTO.  'Negotiations' imply a commitment to draw up a new agreement, whereas 'discussions' or a 'study process' do not.  For three of these issues (all except trade facilitation), working groups had been established by the 1996 Singapore Ministerial Conference and in the opinion of these developing countries, the working groups should continue to discuss the issues while trade facilitation should continue to be discussed in the relevant WTO organs.  These views were expressed by many countries at the WTO meetings in Geneva to prepare for Doha, as well as in joint statements made by the ministers of the least developed countries (LDCs) at their meeting in Zanzibar in July; by African Trade Ministers at their meeting in Abuja in September; and by Ministers of the Africa, Caribbean and Pacific (ACP) group at their meeting in Brussels in November. 

However, these positions were not reflected in a draft Ministerial Declaration (WTO 2001b) that was transmitted by the Chairman of the WTO General Council and the Director-General of the WTO secretariat to the Doha Ministerial Conference. The draft committed the members to negotiations on all four issues, immediately for transparency in government procurement and trade facilitation, and in two years, after the Fifth Ministerial Conference, for investment and competition.  Moreover, the least developed countries group and several non-LDC African countries had presented views that negotiations should not begin on industrial tariffs (or non-agriculture market access) but instead a study process be initiated to take account of their concerns that previous industrial tariff cuts had resulted in de-industrialization and closure of local firms. Nevertheless, the draft committed members to immediate negotiations.

Despite requests by many developing countries that the Geneva draft be amended or at least that their views be reflected in an annex or a cover letter, the same draft (that was 'clean' in that it did not reflect the differing views or options, as would have been normal for an international conference when there is no consensus in some parts) was transmitted to Doha (without an annex, or an explanation of the divergent views in the cover letter) to form the basis for the negotiations at the Conference.

At Doha many developing countries again stated (in their Ministers' statements presented at the official plenary, and during informal consultation meetings) their opposition to the draft Declaration committing the WTO to negotiate the Singapore issues.  However, once again such a negotiating commitment was placed in two further drafts during the Conference. In the final draft, which the secretariat released on the last morning of the Conference, 14 November, Ministers agreed that negotiations would take place on all four issues after the Fifth Ministerial Conference (scheduled in 2003) on the basis of a decision to be taken by explicit consensus at that Conference on modalities of negotiations (WTO 2001c). In a final consultation meeting on the same afternoon, more than ten developing countries suggested that the text be changed, to remove the commitment to negotiations on the four issues. India indicated it could not agree to the Declaration unless amendments were made.  

Eventually a compromise was worked out, in which at the formal closing ceremony the Conference Chairman, Mr. Youssef Hussain Kamal, the Minister for Finance, Economy and Trade of Qatar, read out a clarification that in relation to the four issues, a decision would indeed need to be taken at the Fifth Ministerial Conference by explicit consensus, before negotiations could proceed on the four issues.  He also clarified that this would give each member the right to take a position on modalities that would prevent negotiations from proceeding until that member is prepared to join in an explicit consensus  (Kamal 2001).

One of the more significant discussions that can be expected at the WTO in the wake of the Doha Conference is the status of the Singapore issues: does the Ministerial Declaration (with its commitment to negotiations after the Fifth Conference) or the Doha Conference chairman's understanding (that a decision by consensus is needed before negotiations can proceed) take precedence?   In any case, the Declaration has already laid out a work programme for the next two years for the four issues, with an agenda of specific topics that appear to be in the pre-negotiations mode (for example, in the area of investment, work will focus on scope and definition, transparency, pre-establishment commmitments, exceptions, dispute settlement, and so on).   Thus, there will be a serious and very heavy work programme already regarding the Singapore issues in the period up to the Fifth Ministerial, and if a decision is then taken to begin negotiations, the workload will be increased further. Needless to say, should the negotiations lead to the establishment of new agreements, the burden of obligations on developing countries will be much heavier and the scope of the WTO's mandate would immensely expand.

Whether that happens will depend on whether developing countries deepen their understanding of the issues in the several months ahead, whether they consider it in their interest to have these proposed new agreements in the WTO, and whether they can persuade developed countries to respect their position (or stand up to pressures from these countries) in the event they do not want these issues to be developed into WTO treaties.

With regard to the Declaration on TRIPS and public health, the key general statement is that 'the TRIPS Agreement does not and should not prevent Members from taking measures to protect public health' and that the Agreement 'can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all'  (WTO 2001d).  The Declaration recognizes the Agreement's flexibilities, including in relation to compulsory licensing and exhaustion of intellectual property rights.  Some trade analysts have pointed out that the Declaration has not added value to the legal rights of developing countries seeking to improve their ability to take measures to cut the cost of (or obtain substitutes to) patented medicines; yet as a 'political declaration' asking Member governments to go ahead and exercise their rights, perhaps it has some value or provides some encouragement to developing countries. However, the reality and extent of this political value of the Declaration remains to be tested  (Raghavan 2001i).

Regarding the 'implementation issues' raised by developing countries, the Doha Conference did not resolve most of them.  The majority of the proposals have been listed as 'outstanding issues' on which no decisions have yet been taken; these shall be discussed by the 'relevant WTO bodies,' which shall report to the Trade Negotiations Committee by the end of 2002 for action. Within the Doha Decision on Implementation-Related Issues and Concerns (WTO 2001e), most of the implementation issues (on which decisions have been taken) have been sent to subordinate WTO bodies for possible action, and seem to involve no more than a 'best-endeavour' attempt, rather than legally binding commitments.  According to Raghavan (2001j), in one sense the time and energy spent by the developing world to raise the implementation issues have amounted to nothing more than an agreement to negotiate them under the new work programme.  However, in reality, developing countries had not really expected anything beyond managing to put these up for renegotiation; if not for this, the major countries would have refused to even look into these issues.

The Doha Conference and its preparatory process have also raised again the issue of transparency and the limited ability of developing countries to participate in decision-making.  Although developing countries prepared themselves well and played an active role in making their views known at the WTO meetings and consultations in Geneva, their views were not reflected properly (and in some areas, not at all) in the several drafts of the Ministerial Declaration that were produced in Geneva and subsequently at Doha.  Although the contents of the last Geneva draft were heavily disputed by many developing countries, it was nevertheless transmitted without change and in a form that did not incorporate the various diverging views and options, thus placing the dissenting developing countries at a grave disadvantage. 

In Doha, six 'friends of the Chair' were appointed to conduct consultations on controversial issues; how they were appointed, what their specific powers were, and why they all came from a similar camp (that was known to advocate a new round), were not explained nor subjected to approval by the members. When a large number of developing countries were still opposed to negotiations on the Singapore issues on 13 November, the last scheduled day, the Conference was extended by another day.  On the final night, a 'Green Room' meeting involving only 24 countries was convened, and it lasted until 5:00 or 6:00 in the morning.  The selection of participating countries, what representative authority they had, what was discussed, who convened the meeting, and who prepared the texts and drafts (including the final Declaration text) were not made known to members or the public, let alone decided upon by consensus. 

The biases in the process in favour of developed countries, and the disadvantage at which developing countries have been placed in the negotiations, have caused exasperation and frustration among the delegations of several developing countries, as well as among many non-governmental organizations and social movements that witnessed the events and the processes.  As India's Commerce and Industry Minister, Mr. Murasoli Maran, himself a major player at Doha, remarked about his experience at the Conference: 

Apart from not seriously reflecting the views of the developing members, the draft Declaration and the manner in which it was transmitted from Geneva to the Ministerial left a lot to be desired. Even at Doha, when the process reached nowhere on 13 November, the scene shifted to the so-called 'Green Room', where only a handful of WTO members were requested to participate.  The remaining members virtually had no say.  Even during discussions on the entire night of 13-14 November (the non-stop session lasting for 38 hours), texts were appearing by the hour for discussions without giving sufficient time to get them examined by the respective delegations.  Who prepared the avalanche of Draft after Draft? Why? We do not know.  In the eleventh hour, probably after 37 hours 45 minutes, they produced a Draft --like a magician producing a rabbit out of his hat -- and said that it was the Final Draft.  The tactics seemed to be to produce a draft at the wee hours and force others to accept that or come nearer to that.  Has it happened in any other international conference?  Definitely not.  Therefore with pain and anguish I would say that any system which in the last minute forces many developing countries to accept texts in areas of crucial importance to them cannot be a fair system.  I would strongly suggest that the WTO Membership should have serious introspection about the fairness of the preparatory process for Ministerial Conferences.  At a minimum, there should be a stipulation that during Ministerial Conferences, no new text on any issue will be put for adoption without the delegations getting sufficient time to study the text and to consult their polity. The last minute Draft, which often comes like a bolt from the blue, will not contribute to the strength of the multilateral trading system, since the decisions are likely to affect the lives of billions of people all over the world. (Maran 2001: 5-6)

Although promises have been made many times (notably at the Singapore Ministerial Conference and after the Seattle Ministerial Conference), by developed countries and by the management of the WTO secretariat, to do away with non-transparent and selective processes such as the exclusive 'Green Room' meetings, and to ensure greater participation of developing country members, the unsatisfactory procedures and methods used before and at Doha have made clear that the situation is even less satisfactory than ever and thus that there is an imperative for reform in the decision-making processes and procedures of the WTO.  Until this is undertaken, it is unlikely that the developing countries' efforts to improve their position and promote their interests in the WTO and in the multilateral trading system will bear fruit.