WTO : THE TRADE-BASED ORGANISATION OF THE WORLD CONTINUES

WTO: The Doha Declaration

DESPITE BRAKES,
THE TRADE-BASED ORGANISATION OF THE WORLD CONTINUES

From Marrakech to Doha, the will of industrialised countries to impose the ultra-liberal ideology throughout the planet has by no means withered. Since the adoption of a set of agreements in 1994 at the end of the Uruguay round, agreements that are managed by the World Trade Organisation (WTO), this ideology has not lived up to its promises for all of those for whom the priority is the fight against poverty through a better distribution of wealth, through a reduction of inequalities, through the pre-eminence of the rights of peoples over private interests. Economic indicators have, year after year, proven that free-trade set up as a dogma benefits only industrialised countries. The lack of decisions at the 3rd ministerial conference in Seattle marked the beginning of a resistance movement stemming from the South, a resistance to this imperial desire of the North. Thanks to the real progress made by developing countries in terms of their expertise and cohesion, the conference which recently took place in Doha, if it re-launched the process of trade in goods and persons has, nevertheless, limited the declared ambitions of industrialised countries. But, the corpus of Marrakech remained unchallenged. And the courageous resistance of developing countries will demand new and important efforts in the coming two years which separate us from the next ministerial conference to which some of the demands of rich countries have been deferred to.

Doha also gave a brutal lesson to Europeans militating in favour of a united world based on law. The hypocrisy and double language of European governments and the Commission in Brussels has become a planetary evidence. The humanist language voiced in unison and aiming to hypnotise the good conscience of the public in Europe and to abuse some of the governments of the South was never translated into concrete action at the negotiation table. When it comes to making a choice, the European Union stands side by side with the US, not with developing countries: protectionism is acceptable only when and if it benefits rich countries. The responsibility of the 15 European governments and of the political parties supporting them is, in this regard, complete. All of the European governments, from Jospin to Berlusconi, follow the same line, supporting the mandate granted to Pascal Lamy and government participation, here and there, from the communists to the greens has, unfortunately, changed nothing. The powerlessness of citizens to change, for Doha, the mandate which had already been granted to the European Commission for the Seattle conference by the 15 national parliamentarians and the 15 governments should provoke thought with regards to the strategies which should be implemented in the coming months. The self-satisfaction expressed after Doha by the European governments and the parties supporting them provides a clear indication of what has yet to come.

THE DECISION-MAKING PROCESS: A PERSISTING OLIGARCHY

Developing countries have made considerable efforts to prepare Doha, to analyse the stakes and to express both, their viewpoints and their alternatives. In short, they have made the effort to play the game of democratic debate taught to them again and again by Americans and Europeans. Both Americans and Europeans, however, did all they could to start of the Doha conference on the basis of their expectations, manipulating WTO rules. The positions expressed by developing countries at various intergovernmental summits (of African countries, of the ACP countries, of the LDC group, of the Group of 77) or at meetings organised regularly or informally by the WTO have been systematically ignored and even denied. Indeed, the western media, in collusion with their governments, have been taking part to a real occultation of any opinion that differs from the dominant discourse imposed by rich countries. The successive drafts of the ministerial declarations prepared by the WTO's General Council presidency were outrageously biased, excluding any reference to the positions expressed by developing countries, in violation to WTO rules. Upon arrival in Doha, official delegations were forced to work on a draft declaration that completely follows the diktats of industrialised countries. Everyone knows that entering into a negotiation on the basis of an adverse position is the same as being forced into a situation of weakness.

The organisation of the work programme at Doha was never carried out with the concern of respecting the fundamental rules of democratic debate. Rather, it was carried out in a context of power struggles. This was blatantly illustrated during the bilateral contacts between rich countries and developing countries, the former alternating between promises and threats. The persons chosen to represent the chair person during the consultations were chosen amongst the partisans of rich countries and the issues chosen for consultation were those which correspond to the expectations of these very countries. Developing countries had to fight to be able to include one of their representatives in order to begin the consultations on issues which mattered to them. Despite the fact that the negotiations were split into seven groups - which required, from each country, a large enough delegation to ensure representation in each of the groups - these various consultations, as much as the meetings between the heads of delegation, enabled developing countries to voice their opinions. This was a progress when compared to the situation in Seattle where the delegations from the developing countries - although representing the majority - had to wait in the halls for industrialised countries to reach an agreement in their name. Yet this time, industrialised countries could not - unless they were ready to run the risk of a new Seattle - afford to continue the negotiations without including developing countries. It is indeed difficult to isolate a country like India whose population totals 1 billion inhabitants. The solution was, rather, to resort to the most diverse forms of manipulation.

When it appeared that developing countries could in fact force rich countries into agreeing to some concessions, "informal consultations" were renewed - a technique that had often been used in Marrakech and Seattle as well as in the day to day operations at the WTO. It is more commonly known as the "green room" in reference to the initial colour of the Director General's office. The "green room" in Doha was, in fact, the "presidential suite no. 11". It is there that the western camp and its allies held meetings with the most resilient delegations. It was also the means to isolate the Indian delegation from the rest of the negotiations that were being held during a part of the decisive night between the 13 and 14 November, a night which marked the turning point of the Doha conference. Only 20 of the 144 countries (China and Taiwan having been admitted during the conference) were granted the right to access presidential suite no. 11. The other countries that had wished to participate were denied access. A number of the countries allowed in were able to be represented only by their ministers, excluding any expert who could have shed light on the subjects discussed. The leaders of the negotiations took advantage of the confusion regarding the different state of the texts to be discussed. Adherence to the proposed drafts were bartered against promises of technical assistance, direct financial aid or threats of withdrawal of such aid. The charade went as far as pure and simple intimidation and persecution of the most resistant ministers. The WTO secretariat took active part in the game, siding with these practices and completely neglecting its obligations towards all member states.

It was at the end of this night that the coalition of countries gathering the African and ACP countries and LDC group was dismantled. ACP countries obtained the necessary waiver with regards to the application of the special trade regime provided for in the Cotonou Agreement. Yet, despite these mafia-style methods - indeed, this is how, with the support of our governments, the world of trade is being regulated - a couple of hours before the end of the negotiations which were prolonged by one day, some ten countries still held on to their position when the heads of the delegations were all gathered for a meeting. This last handful crumbled when confronted to the possibility of being held responsible for what could be a new Seattle. India alone held strong and continued the battle until the last possible limit. It was able to snatch a decisive interpretation on the postponed opening of the negotiations regarding what is commonly called the Singapore issues (see below). It is thus that India gained the contempt of the French newspaper 'Le Monde' which accused the country of having obstructed the process from beginning to end.

Doha has offered a blatant refutation of the Financial Time's recent assertion (09.11.2001) according to which "the multilateral rules-based system gives the poor and the weak the same rights as those granted to the rich and powerful". The WTO is not a democratic institution. Its working methods have produced a system based on power struggles rather than on the law. Its reform is more than ever essential. The outrage experienced by developing countries should incite them to consider this reform as the priority in the next ministerial conference.

THE CONTENT OF THE DOHA DECLARATION: EVERYTHING BUT DEVELOPMENT

In order to evaluate the implications of the 'Doha Declaration', it is important to recall that there are two types of negotiations at the WTO. There are areas which, in virtue of the Marrakech Agreements, are the object of quasi-permanent negotiations: agriculture, services and intellectual property rights. This is the built-in agenda. Whether there is a ministerial conference or not, whether there is a new round or not, negotiations on these issues are scheduled and underway. Only a formal decision of the ministerial conference could put an end to this, by changing its scope or defining the direction to be taken. The 'Doha Declaration' gives direction to the negotiations on these issues.

The concept of a 'new round' thus only concerns negotiations on other issues. There is hence - in the Doha programme - a difference between that which regards the built-in agenda and that which regards the new round of negotiations.

During a USA - European Union summit last spring in Sweden, the governments of this Atlantic economic community had called for a "new ambitious round" of negotiations in view of privatising new sectors of life. This wish for a new "ambitious" round was confirmed by the 15 European governments last 29 October in Luxembourg. During an informal meeting gathering some 20 countries a couple of weeks ago in Singapore and confronted to the hostility of developing countries with regards to a new round of negotiations, a proposal had been presented to rename the project "an agenda for development", without, of course, changing the ultra-liberal proposals contained therein. The Doha programme, whether concerning the built-in agenda or the new round, is neither ambitious nor devoted to development. The programme is limited to a few expectations of rich countries without any opening whatsoever for negotiations on the issues forwarded by developing countries. As has declared Chakravati Raghavan in the SUNS (no. 5011 of the 16 November 2001), we can talk about a round of "Everything but development".

Articles 1 and 2 of the Declaration reassert the belief in the virtues of an absolute free-trade system. This is the dogma and its implementation is believed to automatically produce growth and development. Lyrical wording follows concerning the fight against poverty which has recently become the refrain of the institutions (World Bank, International Monetary Fund, WTO) which have contributed the most to the increase of poverty.

THE BUILT-IN AGENDA

Negotiations on the three areas of this agenda continue, permanently, at the WTO headquarters in Geneva. The 'Doha Declaration' has been limited to providing indications as to the direction which should be given to these negotiations. It did not question any of the relevant agreements, contrary to the demands of developing countries.

Agriculture
This is the area which concerns the overwhelming majority of the planet's population: the small farmers. It is the area which offers the most amazing show of hypocrisy from the European Union and the USA. Together, they grant, each year and under different forms, 380 billion US$ in premiums and subsidies whilst at the same time forbidding, through the Agriculture Agreement, the rest of the world from supporting their production and exports of foodstuffs (should they have the capacity to do so) and to protect their domestic markets against this unfair competition. Nothing in Doha was granted to small farmers. Either in the area of agriculture or in that of the protection of natural resources and indigenous knowledge. (refer to the TRIPS issue) NOTHING. The European Union took the risk of provoking the failure of the Doha conference for the sake of protecting the European agro-industry and its hyper-productivist model (the performances of which are well-known: dioxin, mad cow, foot and mouth, massive pollution). Developing countries asked for preferential tariff treatment and specific measures for small-scale agriculture through a special chapter in the Agriculture Agreement. The European Union led the opposition to this demand, summarised in the expression "Development Box".

The draft declaration mentioned the will to commit to "holding global negotiations with the aim of phasing out the export subsidies in view of their progressive withdrawal". The European Union, which grants aid of a whole other nature than that granted by the US, pushed to introduce an additional indication in the text which indicates that what matters is the reduction of "all forms" of subsidies. However, the European Union also obtained that the phrase "with a view to phasing out" become ineffective by introducing the following indication: "without prejudging the outcome of the negotiations".

Services
The Doha Declaration confirms the on-going negotiations, the direction taken and the objectives pursued. In spite of the fears expressed by citizens, nothing formally indicates that the notion of public service will be protected against the will of privatisation, apart from paragraph 7 of the Declaration which stipulates that: "We reaffirm the right of Members, under the General Agreement on Trade in Services, to regulate, and to introduce new regulations on, the supply of services." It has been asserted that this provision will enable states to protect the concept of public service, particularly in the areas of education and health. It should be noted that environmental negotiations which are about to commence (see below) entail environmental services which are directly threatened by privatisation.

Intellectual Property Rights (TRIPS)
The Trade-related Aspects of Intellectual Property Rights Agreement (TRIPS) - the extremely elaborate form of property law - hinders the application of fundamental rights: the right to health (A) and the sovereign right of peoples over their natural resources (B), a right which is, for that matter, enshrined in international instruments adopted and ratified by all states. The TRIPS tackles areas of intellectual property (C).

1. With regards to the right to health and its practical application, that is, the right to access essential medicines, a different declaration was adopted following the persisting efforts of developing countries, resolutely united in their fight presented, quite rightly, as "a matter of life or death".
    
   In February 2000, in front of the European Parliament, the European Commissioner for international trade asserted, peremptory, that international property rights (patents) have no effect on the price of medicines. The Doha Declaration adopted in Doha makes note of exactly the opposite. The Doha text on the "TRIPS and health" represents a major political step. Yet, it contains no legal translation, a point which the American delegation did its very best to recall at all times. The problems posed by patents in the area of public health and of the fight against epidemics have been identified and recognised. States have expressed their wish to ensure that the application of the TRIPS does not hinder the rights of WTO members to take appropriate measures to enable access to essential medicines. They did not question the principle of a patent. A negotiation is scheduled in Geneva on the issue of the import of generic medicines. It should be finalised before the end of 2002.
    
2. With regards to the sovereign right of peoples over their natural resources and the fight against biopiracy and the patenting of life, article 19 of the Declaration gives instruction to "the Council for TRIPS, in pursuing its work programme including under the review of Article 27.3(b), the review of the implementation of the TRIPS Agreement (. . .) to examine, inter alia, the relationship between the TRIPS Agreement and the Convention on Biological Diversity, the protection of traditional knowledge and folklore, and other relevant new developments." Even if the wording does not open a renegotiation of the TRIPS as was requested by developing countries, it does not put an end to the discussions of article 27:3 b), as was requested by the European Union.
    
   The progress witnessed with regards to the TRIPS (concerning medicines) in the Doha Declaration should not make us forget that this Agreement is not open for renegotiation. According to the demands of multilateral pharmaceuticals and of the agro-industry, the European Union and the USA are resolutely hostile to such a renegotiation which was requested by developing countries.
    
3. The Declaration announces the opening of negotiations on the establishment of a multilateral system of notification and registration of geographical indications for wines and spirits. This is the implementation of article 23 of the TRIPS and not its review.

THE NEW ROUND

Under the leadership of an ad hoc committee, negotiations will be held between the 01.01.2002 and the 01.01.2005. A ministerial conference will be organised to take decision on the results. These negotiations, their conclusion and the implementation of their results will be treated as parts of a single undertaking. These negotiations will focus on the following areas:

• Market access for non-agricultural products: it concerns customs duties and tariffs on industrial products. Developing countries and, more particularly, the African group, had asked that there be no negotiation prior to an in-depth study of the impact of the lowering of custom duties and of tariff peaks on the de-industrialisation of developing countries. Their voices were not heard. If care is not taken, negotiations on this issue could lead to a considerable expansion of free-trade in the areas that directly concern sustainable development.
• The GATT 1994 (that is, the agreements reached within the framework of the former GATT until 1994): the negotiations will focus on the question of the implementation of the existing provisions, particularly in the area of subsidies (for example, fisheries) as well as the procedures and disciplines relating to regional trade agreements.
• The environment: negotiations will concentrate on the relation between WTO rules and multilateral environmental agreements. These negotiations will, however, not bind those countries which are not signatory to the agreements. The US is thus free to act as it wishes and to impose to others rules that it refuses for itself. Worse yet, the wording of this provision shows an implicit pre-eminence of WTO rules above all other rules which make up international law and incites countries to refuse to adhere to environmental agreements. The Declaration also announces that the environmental negotiations will focus on the "reduction or, as appropriate, elimination of tariff and non-tariff barriers applicable to environmental goods and services". The way has been paved for the privatisation of environmental public services (water, energy, waste . . .). On the other hand, the prescriptions with regards to labelling for environmental purposes have been transferred to a working group. The priority of sustainable development is not presented as a limit to the expansion of free-trade.
• Implementation. It is not a matter of negotiations on new issues per se, but rather on the details of implementation of the existing agreements. It was a request expressed by the overwhelming majority of developing countries in their wish to see that work on implementation and its impact would eventually lead to the review of the existing agreement. They did not obtain this. No significant progress has been made concerning the respect, by rich countries, of the Agreement on Textiles and Clothing, nor on the abusive use by these very countries of anti-dumping measures.
• The reform of the dispute settlement mechanism. It is the only negotiation which will focus on an existing agreement and on the actual operations of the WTO. Contrary to the other issues of the new round, the deadline for these negotiations has been set to May 2003. Without forecasting the direction which the negotiations will take, it is indeed a delight to see that a possibility has been offered to review a mechanism which has given rise, quite rightly, to substantial criticism.

It is evident that the impact of this new round is greatly limited. It would have been different if the so-called Singapore issues had been integrated into the negotiations. Industrialised countries wanted the new round to focus on investment (to give impetus to the Multilateral Agreement on Investment rejected in 1998), competition, government procurement and trade facilitation. Developing countries - and LDC even more so - were unanimous in declaring, time and time again, that they were not ready to take this big step forward into free-trade which is turning the planet into a single market dominated by transnational corporations from the North.

The entire battle which took place on the night between the 13 and 14 November concerned these paragraphs of the draft declaration (20, 23, 26 and 27). During the first days of the conference, developing countries had obtained that a decision on these issues be postponed to the 5th ministerial conference in 2003. However, under the pressure of the European Union, they were reinserted in the programme of the new round. The only difference between these issues and the other issues of the programme is that negotiations on the former will take place "after the 5th session of the ministerial conference on the basis of a decision to be taken by explicit consensus, at that session, on the modalities of negotiations."

It was India's persistence which led to the presentation, before the adoption of the Declaration in plenary session, of the following interpretation by the chair of the conference: "I would like to note that some delegations have requested clarification concerning Paragraphs 20, 23, 26 and 27 of the draft declaration. Let me say that with respect to the reference to an 'explicit consensus' being needed, in these paragraphs, for a decision to be taken at the Fifth Session of the Ministerial Conference, my understanding is that, at that session, a decision would indeed need to be taken by explicit consensus, before negotiations on trade and investment and trade and competition policy, transparency in government procurement, and trade facilitation could proceed. In my view, this would also give each member the right to take a position on modalities that would prevent negotiations from proceeding after the Fifth Session of the Ministerial Conference until that member is prepared to join in an explicit consensus." This means that if a member is not willing, in 2003, to participate to the consensus, negotiations on these issues will be blocked. The USA and the European Union will most certainly forward the fact that the chair's interpretation does not have the legal value of the Declaration. This may provide jurists with matter for debate even if the clarification of the conference's chair is an integral part of its work and even if no one can forecast the final result regarding the adoption of the Doha Declaration had the chair's interpretation not been expressed prior to this adoption. Beyond the legal debate, there is undoubtedly a political commitment to avoid forcing any country before opening negotiations on these issues.

As for the other issues which were not the object of negotiations (electronic trade, small economies, debt and finance, transfer of technology, technical co-operation and capacity building), they have been transferred to WTO working groups. The fundamental internationally recognised labour norms remain the exclusive competency of the International Labour Organization.

In conclusion, one will note that, if the operations and rules of the WTO remain extremely harmful to developing countries, these have started to defend their interests. Negotiations on issues of the built-in agenda will continue and other negotiations will start on new issues. Everything will henceforth take place in Geneva. A long and difficult battle will have to be waged for trade to be at the service of people rather than for people to be at the service of trade.

Raoul Marc JENNAR
researcher for Oxfam-Solidarity and the Research, Training and Information Unit on Globalization (URFIG)
21 November 2001

Results from Doha
Global Action against WTO
AGP