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Copyright © The Author 2007. Published by Oxford University Press.
Implementation and imbalance: dealing with hangover from the Uruguay Round
* michael.finger{at}comcast.net
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Abstract |
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The Uruguay Round agreements impose bound obligations to implement, but provide only unbound promises of assistance—is there a legal solution within the WTO legal system, i.e. can implementation assistance be made a legal obligation? The author concludes that the Doha negotiations on trade facilitation and on aid for trade demonstrate that such a legal arrangement cannot be constructed. This is not, however, a problem; the international community has provided extensive trade-related assistance through bilateral and multilateral development agencies. Regarding the overall Uruguay Round imbalance (developing countries gave more than they got), failure of the international community to acknowledge that the imbalance stems in major part from the WTO agreement on intellectual property (TRIPS) has retarded a general making-up.
Key Words: WTO • implementation • special and differential treatment • Uruguay Round • Doha negotiations • developing countries
The author wishes to thank Bernard Hoekman, Will Martin, and David Vines for thoughtful comments that contributed to major improvement of the paper. Only the author is responsible for interpretations, conclusions, and for errors that may remain.
1 Anjaria (1987) documents the point about use of Article XVIII:B; Hudec (1987) provides a masterful examination of developing countries in the GATT system through the Tokyo Round.
2 Tussie and Lengyel (2001) review these changes. From the end of the Tokyo Round in 1978 to the beginning of the Uruguay Round in 1987, 44 countries acceded to the GATT, 43 of them developing countries.
3 The label was first applied by Ostry (2000).
4 Few developing countries had signed the Tokyo Round codes, hence obligations in the areas these codes regulated, e.g. customs valuation, import licensing, and technical standards, were also ‘new’ for developing countries.
5 Finger and Nogués (2002) provide details on the points summarized here.
6 Restrictions on powerful exporters, we now realize, protected less powerful exporters as well as producers in the importing countries.
7 The Agreement on Trade-related Aspects of Intellectual Property (TRIPS).
8 Finger (2002) provides details. An element in the economic success of intellectual property owners was that they led the international community to see the issue as morality rather than economics, combating ‘piracy’ rather than the costs and benefits to each country of the proposed agreement. Before TRIPS, intellectual property was strictly a matter of national definition. The ‘pirates’ were in violation of neither international nor the relevant national standards, their own.
9 Finger and Nogués (2002) speculate on why developing countries accepted the unbalanced agreement. The possible reasons include:
- lack of assessment of the impacts of the agreements (see Ostry, 2002) and even of the data needed to conduct such assessments;
- the diplomatic value of being charter members of the WTO—an organization the international community had struggled for 50 years to create;
- creating a new organization allowed countries to withdraw from the GATT; legally speaking they became, as WTO members, parties to a ‘new’ ‘GATT 1994’; thus any country that chose not to accept the WTO agreements would have been subject, for example, to US tariff policy as it existed in the 1930s, US textiles and clothing policy as it existed in the 1980s, US antidumping policy as it existed in the early 1990s—or worse, at the unilateral discretion of the USA.
10 Finger (2002) provides a complete tabulation of the elements in this work programme.
11 The July 2004 work programme also furthered the shift of WTO attention toward dealing with the implementation requirements of future negotiations rather than resolving those created by the Uruguay Round Agreements. The work programme devotes only eight lines in a 778-line document to ‘those elements of the Work Program which do not involve negotiations’ (para. 1.h).
12 WTO (2004), para. 5 of Annex D that is entitled ‘Modalities for Negotiations on Trade Facilitation’.
14 This perhaps in parallel to Uruguay Round expansion of GATT/WTO coverage to intellectual property, investment, etc., by attaching the label, ‘trade related’.
15 WTO (2006b) is the Task Force's report.
16 In a later internet chat room discussion (16 October 2006), Mr Lamy explained that while the WTO makes only a modest contribution to capacity building, it seeks to contribute coherence and clarity to others' efforts.
17 WTO (2006d). A June 2007 extension of this tabulation (TN/TF/W/43/Rev.11) includes 26 proposals that submit textual language for an agreement.
18 African Group (all African members of the WTO, currently 41 countries): Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Congo, Congo (Democratic Republic), Côte d'Ivoire, Djibouti, Egypt, Gabon, the Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Lesotho, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, and Zimbabwe (TN/TF/W/95, 19 May 2006).
19 Chile, Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, and Uruguay (TN/TF/W/81, 3 April 2006).
20 Bangladesh, Botswana, Cuba, Egypt, India, Indonesia, Jamaica, Kenya, Malaysia, Mauritius, Namibia, Nepal, Nigeria, the Philippines, Rwanda, Tanzania, Trinidad & Tobago, Uganda, Venezuela, Zambia, and Zimbabwe (TN/TF/W/142, 31 July 2006).
21 Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, Uruguay, China, Japan, Kyrgyz Republic, Pakistan, Sri Lanka, Armenia, European Communities, Georgia, Moldova, Switzerland, and Canada.
22 The proposals are listed in the references as WTO (2006a) and WTO (2006c).
23 As to the time that might apply, the Uruguay Round negotiations were completed 15 December 1993, the Agreements entered into force 1 January 1995.
24 W142 proposes also a list of ‘best endeavour’ standards. These do not become obligations, even if a developing member requests and receives capacity-building assistance. The obligation on donor members to provide such assistance does not apply. One possible reason for such a list would be to provide an extended or forward-looking blueprint for trade-facilitation measures. The WTO is not, however, the agency on which the international community depends for such; other international conventions and organizations, e.g. the WCO and the Kyoto Convention, do this. Moreover, any country can already request assistance from a bilateral or a multilateral agency for help with installation and management of such standards—without WTO ‘permission’. The category then seems to be superfluous.
25 Beginning with the Integrated Framework in 1997, a number of needs assessments have already been conducted. A conclusion is always that further assessment is needed. The most recent of these is the World Bank, IMF, WCO study (World Bank International Trade Department, 2006), described as it began as ‘The Cost of Implementation Studies’. It did add a modicum of reality to the trade-facilitation assistance discussion, but hardly the precision which a government would want before accepting the legal obligation that a WTO agreement would involve—or a donor would want before committing to providing assistance. (Indeed, they are no more precise than the numbers Philip Schuler and I cobbled together from World Bank project experience in the late 1990s.) This report, like the Integrated Framework assessments, passes that responsibility to the as-yet unspecified persons who would conduct the self-assessments on the basis of which developing members would notify the obligations they accepted, and donor members would accept the obligation to provide the assistance specified in those motivations. As professional work, the flaw of the paper is not the imprecision of its estimates, it is the suggestion that further work would refine them to the level that the proposals demand.
26 A development agency can soften the ‘no’ on AfT facilitation by pointing to the aid it provides in other areas, such as public health or education.
27 OECD/DAC reports also a substantial amount of assistance for trade-related infrastructure, e.g. transportation and telecommunications.
28 The reports are from the OECD/DAC (2006), the Asia-Pacific Research and Training Network on Trade (Duval, 2006), and the World Bank, IMF, and WCO (World Bank International Trade Department, 2006).
29 If ‘one-size-fits-all’ is false as a general proposition, then there can be particular situations in which it is true.
30 Source: WCO website, 22 February 2007.
32 Some may not consider this ‘within the system’
33 Finger (2002) provides details.
35 The prominent economist T. N. Srinivasan (1998), for example, has made that suggestion.
36 The WTO website provides basic information on these changes: http://www.wto.org/english/news_e/pres05_e/pr426_e.htm
37 Hudec (1987, particularly ch. 10). Finger (2007b) summarizes Hudec's analysis and applies it to post-Uruguay-Round events.
38 Other important data are not available, e.g. several important members are several years behind in reporting their agriculture subsidies (Hepburn, 2007, p. 3).
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