TWN Info Service on WTO and Trade Issues (Feb16/03)
18 February 2016
Third World Network

WTO flexibilities for African countries must be preserved
Published in SUNS # 8181 dated 16 February 2016

Geneva, 15 Feb (Kanaga Raja) - The flexibilities in favour of the African countries and the key principles underpinning the architecture of the WTO Agreements must be preserved, the African group of countries at the World Trade Organisation (WTO) told an informal Heads of Delegation (HOD) meeting last week.

The HOD meeting, convened by WTO Director-General Roberto Azevedo on 10 February, was the first meeting of the full membership since the conclusion of the Nairobi Ministerial Conference (MC10) last December.

A number of other developing countries, in their interventions at the HOD meeting to discuss the work going forward post-Nairobi, also said that the flexibilities that have been inscribed in the texts over the past 14 years must be preserved.

They also underlined the need to address the remaining Doha Development Agenda (DDA) issues as a priority and that the development dimension and special and differential treatment (SDT) are key in moving forward.

Some developing countries also expressed disappointment with the negotiating process in Nairobi, saying that having five countries making decisions and the membership being presented (with less than 1-1/2 hours to digest the draft and decide) at the end (of an extended meeting) with a more or less take-it-or-leave-it text was not something that was acceptable (see SUNS #8179 dated 12 February 2016).

In its intervention at the HOD meeting on 10 February, the African Group, represented by Lesotho, said that it cannot over-emphasise the need for a candid discussion on the elements inscribed in the Nairobi Declaration.

"Any attempt to run over the declaration in overdrive mode would be a gross miscalculation. More so given that the Nairobi process was largely left to a few members. A reflection is called for on whether we will operate on the basis of the need justifying the means in our engagements."

Lesotho noted that Members have skimmed over the real challenges they face without a thorough discussion.

"We may understand the broad contours of Members' concerns but we have so far not gone deep enough to further understand the specific challenges or even device means with which we can deal with those challenges," it said.

It added that what is clear though is that developed members cannot have it both ways without making a requisite contribution.

These set of Members have maximised the benefits from the WTO agreement for the past 20 years with a multilateral agreement tilted in their favour.

"It will be unacceptable therefore for these benefits not to be accounted for in our negotiations," said the African Group.

Concerns by some members seeking to depart from the Doha mandates must be openly discussed, the African Group added.

One clear standpoint of the African Group in this context is that the flexibilities in favour of the African countries and the key principles underpinning the architecture of the WTO agreements must be preserved.

A discussion that "we will engage in is one that preserves the internationally recognised vulnerabilities and levels of development of Members. We know the truth behind the WTO negotiated outcomes and Nairobi was no different. To this end, we must ensure that the design of the MTS [multilateral trading system] is not left in the hands of a few members to model it for the majority of Members."

It further emphasised that the architecture of the WTO agreements must be preserved, adding that the Marrakesh Agreement provides for clear distinctions along the lines of countries' levels of development.

It is through these distinctions that LDCs and developing African countries will be integrated into the Multilateral Trading System.

"The Africa Group is therefore of the strong view that the architecture of the subsisting WTO Agreements should be preserved."

"While it is important to pursue an avenue that will lead us to a win-win outcome, it is equally important to recognise that we have an outstanding in-built agenda, say in the area of services and agriculture," it said.

"We all know that the agreement on Agriculture as it stands today falls far too short of being characterised as a truly multilateral agreement both in word and in spirit. This is one area that needs urgent attention."

Lesotho said that it is unacceptable to the African Group for the progress in the MTS to be based on the domestic process of a few members who in the final analysis give no meaningful concessions.

"The current phase of the Geneva negotiations should not replicate the structure of negotiations we have seen in times past. The system today is generally anchored on negotiations that are considered successful only if developing countries undertake domestic reforms," it said, citing Trade Facilitation as one of the recent examples.

"In the final analysis there is no equity and the system turns into one that grants exceptions to the most economically powerful Members. Clearly, the next set of steps must ensure equity in the negotiated outcomes."

The African Group said that it will seek well-balanced and properly sequenced negotiations in Geneva.

Engagement of capitals is heightened to ensure coherence in all areas and processes that as member states we are involved.

A good example of this is the Sustainable Development Goals Agenda so critical for the developing world, it added.

Meanwhile, in a separate intervention at the HOD meeting, Uganda, a member of the LDC group of countries at the WTO, registered its profound disappointment with the manner in which the negotiations were conducted in Nairobi.

"We always pride ourselves in the fact that this is a member-driven Organisation riding on the principles of transparency, inclusiveness and bottom-up approach. In fact, this is the process we had set up in Geneva, prior to Nairobi. However, what transpired in Nairobi left a lot to be desired. Nairobi did not portray our being a member-driven Organisation. What happened to Nairobi being a Ministerial Conference?"

It said that while the Facilitators on the Nairobi Ministerial Declaration conducted a transparent and inclusive process, Section III of the Declaration, which was not under the facilitators' responsibility, was managed in a very isolationist manner.

Uganda recalled that this was the most critical part of the Declaration and yet, the vast majority of the membership did not participate in shaping its outcome.

"We were never consulted. Even when we prompted discussion on this issue in the bilaterals, we were greeted with silence. We do not even know who was consulted," it complained.

"This attitude should stop. It cannot become the norm that we all surrender our sovereign right either to the Secretariat, or to a handful of handpicked delegations to decide on our behalf. Our Ministers were relegated to coffee cup bearers instead of negotiating their trading rights. This Organisation is made up of 164 Members and we all have a stake in this Organisation."

Uganda further recalled that the Treaty of Westphalia of 1648 codified the principle of the sovereign equality of states, and that this principle has been carried forward in all conventions and treaties that form the bedrock of international relations.

Uganda therefore rejected any artificial and isolationist tendencies not grounded in public international law, engineered to deprive states of their inalienable rights of representation.

It called upon Director-General Azevedo and all the members to ensure that this cardinal principle is promoted, protected and respected at all times.

Uganda also suggested that the idea of sending "half-baked documents" to a Ministerial Conference should not be allowed to happen again.

Like the practice in other Organizations of similar standing, documents submitted to the Ministerial Conference should simply be for adoption. "Nairobi would never have happened in the past."

It noted that Bali (venue of MC9 in 2013) was so much different. LDC issues were closed in Geneva; as for the Trade Facilitation Agreement (TFA), "we could identify landing zones in the draft agreement, all that remained was a political decision."

On the other hand, Nairobi was neither here nor there, Uganda said.

It was of the firm belief that any documentation for submission to a Ministerial Conference should be basically for adoption.

In the unlikely event that this is not the case, then the exception should be for a simple question of 'yes' or 'no'.

"And all of us must procedurally agree, by consensus, whether to submit such unfinished documents or not."

On the substance, Uganda was of the view that work should start immediately on the remaining issues of the DDA towards its conclusion with development at the centre.

"We should take lessons from the past. We have increasingly come to the conclusion that whenever members choose to be creative in interpretation of text, we end up losing time like we did in the Post-Bali Phase."

In its reading of Paragraphs 30-31 of the Declaration, the mere expression of divergent views on the DDA does not mean its death.

"By way of example; the mere expressions of marital discontent in public, by a spouse engaged in, inter alia, extra territorial activity, does not necessarily mean the dissolution of the marriage. It may lead to, but it is not, a divorce."

[Para 30 of the Declaration states: "We recognize that many Members reaffirm the Doha Development Agenda, and the Declarations and Decisions adopted at Doha and at the Ministerial Conferences held since then, and reaffirm their full commitment to conclude the DDA on that basis. Other Members do not reaffirm the Doha mandates, as they believe new approaches are necessary to achieve meaningful outcomes in multilateral negotiations. Members have different views on how to address the negotiations. We acknowledge the strong legal structure of this Organization."

[Para 31 states: "Nevertheless, there remains a strong commitment of all Members to advance negotiations on the remaining Doha issues. This includes advancing work in all three pillars of agriculture, namely domestic support,    market access and export competition, as well as non-agriculture market access, services, development, TRIPS and rules. Work on all the Ministerial Decisions adopted in Part II of this Declaration will remain an important element of our future agenda."]

In its statement, Uganda was therefore encouraged by the resolve of Ministers for members to advance negotiations.

"This does not mean re-writing history, whether contemporary or ancient in the context of the WTO. It simply means that we soldier on."

Towards that end, Uganda said that it would like to reaffirm the Doha Development Agenda and its entire architecture.

"We call for the preservation of all flexibilities for LDCs and developing countries as enshrined in DMD (Doha Ministerial Declaration) and all Ministerial Decisions and Declarations adopted thereafter."

It committed to work with its colleagues the members to find ways to advance these negotiations in line with Para 33 of the Nairobi Ministerial Declaration.

[Para 33 states: "Mindful of this situation and given our common resolve to have this meeting in Nairobi, our first Ministerial Conference in Africa, play a pivotal role in efforts to preserve and further strengthen the negotiating function of the WTO, we therefore agree that officials should work to find ways to advance negotiations and request the Director-General to report regularly to the General Council on these efforts."]

On the new issues, Uganda said that Para 1 (g) of the July framework is very clear. "Which is why we must make haste and conclude the Doha Work Program so as to afford us ample opportunity to treat any new elements as members may want us to."

[Para 1 (g) of the July 2004 framework states: "Trade Facilitation: taking note of the work done on trade facilitation by the Council for Trade in Goods under the mandate in paragraph 27 of the Doha Ministerial Declaration and the work carried out under the auspices of the General Council both prior to the Fifth Ministerial Conference and after its conclusion, the General Council decides by explicit consensus to commence negotiations on the basis of the modalities set out in Annex D to this document.

[Relationship between Trade and Investment, Interaction between Trade and Competition Policy and Transparency in Government Procurement: the Council agrees that these issues, mentioned in the Doha Ministerial Declaration in paragraphs 20-22, 23-25 and 26 respectively, will not form part of the Work Programme set out in that Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round.]

Uganda urged all members to engage in good faith. "To uphold and implement what we have already agreed. We stand on the shoulders of two particular paragraphs, namely: para 24 and Para 5, especially Para 5, where Ministers agreed to strengthen the multilateral trading system so that it provides a strong impetus to INCLUSIVE PROSPERITY and WELFARE for ALL MEMBERS and respond to THE SPECIFIC DEVELOPMENT NEEDS of developing country Members, in particular the LEAST-DEVELOPED COUNTRY MEMBERS," it said.

In its intervention at the HOD meeting, South Africa said it was pleased that the first ministerial conference in Africa delivered agreed outcomes both in terms of a Nairobi Ministerial Declaration and an agreement on new disciplines on export competition.

"This was testimony to the determination of members to deliver an outcome in Nairobi; nevertheless, while we agreed on these important matters we also need to recognise the divergences amongst members on many other important issues," it said.

"We were not able to agree on an outcome on Special and Differential Treatment (S&DT), nor were we able to deliver an outcome on fisheries, which are important to a large number of developing country Members. Other important divergences include views on the future of the DDA, on how to deal with new approaches and whether, and how to consider new issues."

All these issues are left open in the Ministerial Declaration and "our challenge is whether we can find a way to move forward together multilaterally," it said.

South Africa further said that there is need to implement the results of MC10, i.e. new export competition disciplines - this is important for the credibility of the multilateral trading system.

The Ministerial Declaration gives a particular profile to public stockholding (to be addressed in an accelerated and stand-alone manner) and to work on SSM (in the context of addressing all outstanding agricultural issues).

"Work will need to be initiated on these issues," it said.

The Ministerial Declaration also proposes that priority be given to the remaining negotiating issues including agriculture, NAMA, services, development, TRIPS and rules.

"Given different perspectives in this, we need a period of careful reflection to build a shared view on how to advance negotiations and on what issues we should do so."

According to South Africa, this period of careful reflection should consider the following elements:

* That negotiations need to be relevant to historic and current challenges and policy requirements;

* That existing mandates are known and supported by many - these cannot be ignored!;

* That we need to review, build on, and adjust, what is already in place;

* In our view, it is clear that new approaches and issues are as yet undefined, so, it is the responsibility of proponents to identify and make proposals on these for members to consider;

* While the single undertaking principle includes possibilities for early harvest, we cannot assume an issue-by- issue approach will work on other issues: the Trade Facilitation Agreement (TFA) and export competition had particular characteristics that may be difficult to replicate in other issues.

On new issues, South Africa said that it is too early to focus on these as unfinished Doha issues are given priority in the Ministerial Declaration.

Nevertheless, this work presumes an identification of issues, a preparatory stage to explore parameters and elements, before there is an attempt to obtain agreement to launch negotiations, said South Africa.

It said that it remains committed to working constructively with members to find a way forward, particularly on issues that are central to the developmental mandate that launched these negotiations.