TWN Info Service on WTO and Trade Issues (Jul19/32)
29 July 2019
Third World Network

South coalesces around an inclusive approach to transparency
Published in SUNS #8955 dated 26 July 2019

Geneva, 25 Jul (D. Ravi Kanth) – The developing and least-developed countries have coalesced around a joint proposal that called for an inclusive approach to transparency and notification requirements at the World Trade Organization, several trade envoys told the SUNS.

At a General Council (GC) meeting at the World Trade Organization on Wednesday (24 July), the developing countries led by South Africa drove a strong message that while they acknowledge the importance of the prompt “transparency and notifications”, there is a crying need for taking into consideration “capacity constraints that developing countries are facing.”

South Africa’s trade envoy Ambassador Xolelwa Mlumbi-Peter, who introduced the joint proposal from the African Group, Cuba, and India, said “transparency is not only a developing country issue, developed countries must lead by example by submitting comprehensive, timely and accurate notifications.”

The developing countries demanded that “transparency should also permeate every aspect of the operation of this organisation, including how meetings are convened and the conduct of Ministerial Conferences.”

She urged her counterparts from the US and other developed countries to adopt “a developmental and inclusive approach to transparency.”

Ambassador Xolelwa highlighted the difficulties faced by developing and least-developed countries in complying with the transparency and notification requirements.

They include:

* The inability of many developing countries and LDCs in fulfilling their notification obligations does not and should not equate to willful neglect of multilateral obligations.

* For example, some notifications are complex and require detailed data, which exceeds the capabilities of Members due to the lack of central databases containing all the legislation, statistics and data for different government agencies. Non-compliance relates to the lack of proper infrastructure and limited institutional capacity.

* Whilst technical capacity and support provided by the WTO Secretariat is very important, it is important to review it to make it more targeted to specific constraints facing Members.

She called for a cooperative approach whereby developing countries are incentivized for complying with their notification obligations.

Ambassador Xolelwa denounced “punitive approaches” as proposed by the US and its allies for non-compliance with notification requirements.

The proponents underscored the need for “constructive and effective solutions based on the nuancing of obligations in the context of an S&DT approach,” maintaining that “punitive approaches to enforce notification and transparency obligations are not acceptable.”

“Transparency is not only limited to notifications but should permeate all aspects of the function of the WTO,” South Africa said on behalf of the proponents.

The developing countries want “a holistic approach to transparency,” she said, arguing that transparency should underpin “how an organisation like the WTO is run, including the day-to-day function of the WTO, Ministerial Conferences, decision-making processes, including the organisation of various types of committee meetings to ensure effective participation and that the process is inclusive.”

She said that “transparency issues arise because some discussions take place in small committees, informal open-ended meetings, Green rooms etc.”

“Such practices limit the ability of developing country Members to effectively participate in important deliberations,” she argued.

The developing countries drew attention to the non-compliance of notification obligations by developed countries in various areas.

Ambassador Xolelwa cited the following issues of non-compliance by developed countries:

* Notification obligations in the context of Agriculture around final Bound AMS commitments which must be notified promptly.

* We also note that developing countries have a much better notification record than major developed countries under GATS Article III.3.

Other concerns remain around GATS Mode 4. In addition, Article 66.2 of the TRIPS Agreement is another area where more transparency could assist the promotion of technology transfer to LDC Members.

* The TRIPS Agreement establishes an obligation for Members to require patent applications to disclose the origin of biological resources and/or associated traditional knowledge, including Prior Informed Consent (PIC) and Access to Benefit Sharing (ABS).

However, despite a long discussion in the TRIPS Council in Special Session, no outcome has been produced on this important issue.

She reiterated that it is not in developing countries’ interests to expand their notification obligations under the existing Agreements.

Ambassador Xolelwa called for “a solutions-based, development-oriented, inclusive and cooperative approach to transparency”.

She suggested the following features of a cooperative approach on transparency:

* In so far as obligations undertaken under the Marrakesh Agreement and its annexes are concerned, Treaty obligations must be performed in good faith.

Having said this, it is clear that the obligation to comply is not blind to the situation that a particular Member or groups of Members may find themselves in.

* Simplification of notification formats and longer timeframes to comply with notification periods would assist developing countries, while LDCs in specific should not be subject to any notification except in areas where they may have interest.

* Any work in this area should be on supporting and incentivizing developing countries to address these difficulties, while punitive approaches suggested by some will not resolve such capacity constraints and will tend to target Members who are already not able to comply and who remain under financial administrative measures currently.

While a large majority of developing countries, including China, strongly endorsed the joint proposal from the African Group, India, and Cuba, the developed countries raised concerns about the joint proposal, saying it does not address the fundamental issues concerning non-compliance.

The developing countries also rejected a proposal from the US on transparency at the Dispute Settlement Body proceedings, saying there are no provisions in an inter-governmental body to throw open the proceedings to the public.