HONG KONG WTO MINISTERIAL 2005: BRIEFING NOTES
IMPLEMENTATION ISSUES Progress made but some difficult issues remain
Concerns related to the issue of implementation of existing WTO agreements have been expressed by some developing countries for many years.
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The issue is complex and not easily definable. The implementation issues before Member Governments run across the spectrum of the WTO agreements, covering 23 specific issues such as market access, balance of payments, trade-related investment measures, trade-related intellectual property, customs valuation, safeguards, agriculture and services.
Developing countries' difficulties in implementing WTO accords are also rooted in a series of different factors, as well. In some cases, developing countries have raised implementation issues as a means of addressing perceived inadequacies and inequities in the WTO agreements, including the timeframes in which developing countries were to have implemented the accords into national laws, regulations and practices. In other areas, implementation problems are linked to severe financial and institution capacity constraints which prevent developing country governments from adapting regulations, laws and practices so that they are in compliance with WTO rules. In other instances, the problems involve political sensitivities at home that have hindered implementation of the rules agreed as part of the Uruguay Round agreement that established the WTO.
Those countries which have taken a more cautious approach on implementation-related concerns argue that significant adaptation of the rules cannot be undertaken without mandated negotiations.
Ministers meeting in Singapore for the 1st WTO Ministerial Conference in 1996 noted “Implementation thus far has been generally satisfactory, although some Members have expressed dissatisfaction with certain aspects. It is clear that further effort in this area is required, as indicated by the relevant WTO bodies in their reports.”
At the WTO's second Ministerial Conference held in Geneva in 1998, a significant number of governments raised the matter and since that meeting the issue has regularly been on the agenda of the General Council and its subsidiary bodies.
Prior to the Seattle Ministerial Conference in 1999, implementation was a very important issue on the negotiating agenda for some developing countries. Disagreement between developed and developing country governments on negotiating these issues was among the principal reasons behind the failure of the Seattle conference. Negotiators have worked hard on this matter since then and have made considerable progress in dealing with the issue.
After the Seattle meeting, there was wide recognition among WTO member governments of the need to address the issue and delegations agreed in 2000 to establish dedicated sessions of the General Council to deal specifically with implementation related issues.
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The Doha declaration
Since before Seattle, more than 100 implementation proposals have been made by WTO Member Governments, nearly all of which were from developing countries.
At the 4th Ministerial Conference in Doha in 2001, Ministers resolved certain implementation concerns immediately and charged specific WTO bodies with addressing others in several different ways. These actions addressed nearly half of the issues that had been raised before Seattle.
The Ministers agreed that the remaining issues should be dealt with through negotiations which were mandated as part of the launch of the Doha Development Agenda round of global trade negotiations, through discussions in subsidiary bodies which would be reviewed by the Trade Negotiating Committee (which oversees the seven formal negotiating groups and the negotiations that have transpired in the Committee on Trade and Development).
In Paragraph 12 of the Doha Ministerial Declaration Ministers stated “We shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be address under that mandate; (b) the other outstanding implementation issues shall be addressed as a matter of priority by the relevant WTO bodies, which shall report to the Trade Negotiations Committee .... by the end of 2002 for appropriate action.”
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This complex implementation picture has been further complicated by disagreements among Member Governments as to the meaning of appropriate action, as it is spelled out in Paragraph 12 (b). Some delegations suggest that appropriate action means agreement to the proposals, some suggest that it means the proposals should be the subject of negotiations, while others question whether there is a mandate to conduct negotiations on these proposals at all.
In an effort to make progress, then Chairman of the Trade Negotiations Committee and former WTO Director-General Supachai Panitchpakdi suggested in December 2002 that delegations consider five approaches to addressing these issues. Director-General Supachai proposed that governments deal with the issues in one of the following ways: 1) resolving the issue, 2) agreeing that no further action is needed on the issue, 3) referring the issue to a negotiating body, 4) continuing work in the relevant subsidiary body under enhanced supervision by the TNC and with a clear deadline and 5) undertaking work at the level of the TNC.
In March 2003, Dr. Supachai announced that little progress had been made in his consultations on the outstanding implementation questions. He said he would call on the chairs of the WTO bodies with oversight for specific implementation issues and his deputy directors-general to pursue technical work with Members in areas like technical barriers to trade, customs valuation, safeguards and balance of payments provisions.
Two months of subsequent consultations yielded little progress and Director-General Supachai announced in May 2003 that while consultations would continue under relevant chairs and with his deputies, he himself would conduct the consultations on the Extension of Additional Protection for Geographical Indications to products other than Wines and Spirits. As part of the Uruguay Round, WTO members committed themselves to the establishment of a registry for wines and spirits as the means of extending this additional protection. Some delegations believe that this additional protection should be extended beyond those products to others. In Doha, this issue was carried forward as part of the Paragraph 12 (b) process and strong disagreements remain between those who favour extension and believe this issue to be ripe for serious negotiations and those who oppose the extension – largely because they believe it may hinder their export of agricultural products – and believe that no negotiations should take place.
Such was the sensitivity to this question that Director-General Supachai undertook to resolve the matter in his capacity as Director-General and not as chairman of the Trade Negotiations Committee.
As part of the overall Doha Development Agenda framework accord of 1 August 2004 the General Council instructed the Trade Negotiations Committee and other WTO bodies to “redouble their efforts to find appropriate solutions” to the Paragraph 12(b) issues. Director-General Supachai was instructed to continue his work on the outstanding issues, including the extension of geographical indications, and to report in July 2005 on the progress. The August 2004 agreement also said that the General Council should take “appropriate action” in July 2005.
A year later, in his final General Council as Director-General, Dr. Supachai said the progress in resolving these issues was insufficient and that some of the problems appeared “intractable.” He explained that linking all outstanding implementation issues together made it very difficult to settle any of them. The political differences and entrenched positions regarding the extension of geographical indications were particularly difficult to overcome, he said.
Shortly after his arrival as Director-General on 1 September 2005, Pascal Lamy announced his intention to take on the consultative process on the outstanding implementation issues. In his capacity as Director-General, Mr. Lamy announced at the 19 October General Council that he would call on chairs from relevant WTO bodies to continue with their consultations on these matters. He said two of his Deputies Director-General, Valentine Rugwabiza and Rufus Yerxa, will take up specific implementation tasks. Ms. Rugwabiza taking up the those implementation issues related to WTO rules on Trade Related Investment Matters and Mr. Yerxa will hold consultations on geographical indications and the relationship between rules in the Trade Related Intellectual Property agreement and the Convention on Bio-Diversity.