Commentary on the report by the facilitators (JOB/TNC/55) entitled “Tenth Ministerial Conference- Consultations on Ministerial Declaration” (29 October 2015)

This document provides general comments on the facilitators’ report (JOB/TNC/55). It also proposes elements that developing country Members could emphasize in upcoming meetings concerning the Nairobi Ministerial Declaration, in order to reaffirm their opinion regarding the future of the DDA. The document also provides comments on some of the alarming elements referenced in the facilitators’ report.

I. General comments:

  • The facilitators avoid clarifying the weight behind the different elements they convey in their report.
  • Within the current context of the negotiations, this report would play out to the disadvantage of developing countries because it masks the weight of support behind some of the positions that developing countries have convergence around. These include two main areas of convergence: (1) reaffirming the commitment to the Doha Development Agenda, and (2) conditioning the tackling of ‘new issues’ on credible and successful conclusion of the DDA and on consensus among the membership. This in effect undermines the weight of developing countries’ voice in the process of preparing the outcome of the Nairobi Ministerial.
  • The report by the facilitators goes a long way listing ‘new issues’, which are presented as issues that “could be pursued after Nairobi” or as “recurring issues” (See para. 4.17 of JOB/TNC/55). Also, the report mentions multiple times the possibility of a hybrid outcome from the Ministerial, including the possibility of a Chair’s summary (See para. 2.4 of JOB/TNC/55). In case the Ministerial ends with a Chair’s summary, it could be argued that the report by the facilitators could serve as one of the main documents to be taken into consideration, which could serve as a way to refer to the extensive list of ‘new issues’ in the Chair’s summary. Although a Chair’s summary does not have the legal weight of a Ministerial Declaration and does not establish the basis for discussing new issues under the WTO, it could still become an important reference document after Nairobi and could still have an important influence on the way forward. Furthermore, the legal weight of a Chair’s summary could be elevated through referencing it in a future Ministerial Declaration or General Council Decision.
  • The report is lengthy and contains a series of issues presented in a manner that does not allow for clear focus on the central elements of contention and importance in the report. Generally, the contentious discussions and positioning among members in regard to the future of the Doha Round and in regard to ‘new issues’ are reflected in paragraphs 4.8 and 4.9, and 4.15 and 4.16 respectively.

II. Some of the elements that reflect majority opinion among developing countries:

The following paragraphs reflect majority opinion among developing countries although their weight is undermined in the facilitators’ report, because the report avoids associating weights with the elements being listed. These points can be reaffirmed by developing country members in the upcoming meetings of the WTO membership when the Ministerial Declaration and outcomes from the Nairobi Ministerial Conference are to be discussed.

  • “Many delegations said that the Ministerial Declaration needed to clearly reaffirm the commitment to the DDA, including by recalling and reaffirming the Doha Ministerial Declaration and all subsequent Ministerial declarations and decisions, including the recent Bali Ministerial Declaration, and past work such as the Rev. 3 and Rev. 4 draft modalities in NAMA and Agriculture. These delegations stressed that this meant preserving the legal architecture embedded in those Ministerial documents and the mandates included in them by topic. They also considered that the Ministerial Declaration should recognize that the DDA is not yet concluded and that the Nairobi package would be a stepping stone towards it conclusion. In this regard, reference was made to paragraphs 45, 47, and 48 of the Doha Ministerial Declaration” (para. 4.8 of Job/TNC/55).
  • “Some delegations said that no new issues should be introduced before the conclusion of the DDA and stressed that even then, they could only be considered on an exploratory basis and for some, by explicit consensus” (para. 4.15 of Job/TNC/55).

III. Some of the alarming elements referenced in the facilitators’ report:

Below is a listing of some of the alarming elements developing countries might want to take note of in the report by the facilitators. A short comment is included after each highlighted element.

  • Focusing on the WTO’s “work in the future” (para. 2.3 of Job/TNC/55) and highlighting the “new realities and challenges in international trading system, such as global value chains, the digital economy,…” (para. 3.2 of Job/TNC/55).
    • These references could potentially serve as grounds to argue for ‘new issues’.
  • The call for exploring “a new mind-set to approaching the negotiations and looking at the linkages between trade and climate change” (para. 3.3 of Job/TNC/55).
    • Such references could serve as grounds to argue for change in the negotiations process, abandoning the ‘single undertaking’, moving to alternative negotiation approaches such as plurilaterals, and brining in ‘new issues’.
  • Reference made to “number of delegations” saying that “while they could agree to continue the negotiations on the remaining DDA issues, they could not accept any statement to the effect that the Doha Round would continue, or any reference to previous mandates or progress made” (para. 4.9 of Job/TNC/55)
    • This is grounds to refuse reaffirming the DDA.
  • The report points out that “one delegation said that is would prefer an explicit statement declaring the end of the Round. However, it could agree to a Ministerial Declaration that was silent on the fate of the DDA” (para. 4.9 of Job/TNC/55).
    • This reference seems to equate the effect that could result from having a Ministerial Declaration that explicitly ends the Doha Round, with the effect that could result from staying silent in regard to the DDA under a Ministerial Declaration. This point gives an indication on how one member interprets the legal effects of different approaches that could be considered in a Ministerial Declaration. It could also reflect a negotiation posturing by the delegation taking this position. It is worth noting that paragraphs 45 and 48 of the Doha Ministerial Declaration imply that an explicit consensus is needed among the WTO Membership in order to end the Doha Round. However, silence and lack of reaffirmation of the Doha Development Agenda in a Ministerial Declaration resulting from the Nairobi Conference could be dangerous as it would fall out of line in comparison to the previous Ministerial Declarations issued since the Doha Ministerial Conference. It could provide grounds for some Members to claim that the Doha mandate had lapsed. Members should avoid having a Ministerial Declaration that is silent in regard to the continuation of the DDA, especially if the Declaration speaks to a post-Nairobi work programme.
  • Reference to “many delegations (saying) that the issues under the DDA which would not be part of the deliverables at MC10 should form part of the post-Nairobi work…” (para. 4.10 of Job/TNC/55).
    • Such references could set the grounds for promoting the abandonment of the DDA and inserting the left-over issues into a built-in agenda within the post-Nairobi work programme. This scenario would have the same effect as ending the Doha Round without achieving substantive outcomes in the areas of interest to developing countries.
  • The report points that “some delegations said that it was important to identify at least some principles for the negotiations in the future. A large number of delegations said that they were ready to reaffirm the principles of special and differential treatment and less than full reciprocity, even under a framework other than the DDA. However, one delegation said that this could only be acceptable, if it was made clear that these principles applied exclusively to LDCs and other vulnerable economies. One delegation mentioned that commitments should be undertaken in line with Members’ prosperity and weight in international trade, and the length of time since their accession” (para. 4.14 of Job/TNC/55).
    • These references are entry points to argue for abandoning the Doha Mandate and institutionalizing differentiation among developing countries under WTO law. If Members end up abandoning the Doha mandate, even if they reaffirm principles of special and differential treatment and less than full reciprocity, they could expect to have to pay back a high cost for the mere reaffirmation of these principles, without guarantee that they would be integrated across the board in the various areas of negotiations (including potentially the series of ‘new issues’ that are expected to be introduced upon the dismantling of the Doha mandate).
  • “Delegations expressed different and often divergent views on whether non-DDA issues should be included in any post-Nairobi work (para. 4.15 of Job/TNC/55)….Other delegations said that the inclusion of new issues in the future work of the Organization would maintain its relevance as a forum for negotiations and for addressing the realities impacting international trade. One delegation stressed that it could only accept language on the remaining DDA issues, if there was language on new methods or ways to tackle them, as well as language on new issues. In its view, the Ministerial Declaration should recognize the right of Members to bring issues of interest to the WTO in order to start exploring them with a view to possible negotiations” (para. 4.16 of Job/TNC/55).
    • These are among the multiple references used to argue for introducing ‘new issues’. If Members have to trade-off the reaffirmation of the Doha Round with the introduction of the ‘new issues’- even if on an exploratory basis- developing country Members would be paying a high cost while not actually achieving any substantive outcomes under the DDA mandate on the issues of interest to them. Moreover, the ‘exploratory mandate’ can be changed into a ‘negotiating mandate’ in a few years. The proponents of ‘new issues’ would garner the political weight behind agreeing the rules in these new areas, while the DDA issues might be kept lingering.
  • “E-commerce was mentioned by many delegations as an area where more work could be pursued after Nairobi. Other recurring issues mentioned were: investment, including investment incentives and subsidies, competition, SMEs, MSMEs, RTAs, global value chains, food security in the context of a broader agriculture discussion, government procurement, consideration of Mode 5 in services, environmentally harmful subsidies, tropical products, traditional knowledge in intellectual property, and unilateral measures, especially under GATT Article XXI, GATS Article XIV bis, and TRIPS Article 73” (para. 4.17 of Job/TNC/55).
    • Such listing could be used to argue that the membership is comfortable with the introduction of ‘new issues’, and could end up being referenced in a Chair’s summary coming out of the Nairobi Ministerial.
  • “Other delegations suggested using the language contained in the “Elements for Political Guidance” document agreed at MC8 which had invited Members to “explore different negotiating approaches” (para. 4.19 of Job/TNC/55).
    • Such references could be used as grounds to argue for change in the negotiations process, abandoning the ‘single undertaking’, moving to alternative negotiation approaches such as plurilaterals, and brining in new issues.
Last modified onThursday, 03 December 2015 20:45
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