Vicente Paolo B. Yu III

The key question that arises from the text of the Doha Declaration with respect to the Singapore issues -- i.e. the launch of negotiations on investments, competition policy, transparency in government procurement, and trade facilitation -- can be traced to a phrase common to Paras 20, 23, 26, and 27 thereof, to wit:

... we agree that negotiations will take place after the Fifth Session of the Ministerial Conference on the basis of a decision to be taken, by explicit consensus, at that Session on modalities of negotiations.

A general principle of treaty interpretation, as well as statutory interpretation, is that the text of the treaty or law should be read using the plain meaning of the words used therein. Read with its plain meaning, the text above states that negotiations on the Singapore issues can only proceed after the Fifth Ministerial if an "explicit consensus" is reached on "modalities of negotiations". This means that any Member can block a consensus on "modalities of negotiations" on any grounds that it chooses. Absent such "explicit consensus," negotiations cannot proceed.

The use of conditional language with respect to the need for "explicit consensus" in the Singapore issue paragraphs to qualify the reference to negotiations thereon is important because nowhere else in the other paragraphs of the Doha Declaration that mandates negotiations can such conditional language be seen.

Furthermore, meaning of the phrase above was sought to be clarified by the 4^th Ministerial Conference Chair (Minister Kamal of Qatar) as follows:

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 the 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 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.

The exact status of the Chair’s explanation in relation to the common phrase in Paras 20, 23, 26, and 27, and whether such explanation constitutes an integral part of the Membership’s understanding of what the phrase means is still in doubt because of the ambiguous phraseology used therein. The fact that he made that statement as the Conference Chair before the Doha Ministerial Declaration was adopted by consensus in the final plenary session would seem to indicate that it is a consensus understanding of the entire Membership such that it becomes a binding interpretation or understanding of what the common phrase in Paras 20, 23, 26, and 27 means. On the other hand, the fact that his statement is full of personal references to his understanding or view -- i.e. "let me say", "my understanding", "my view" -- of the situation might also be interpreted to mean that he was speaking in his own capacity as the Conference Chair, rather than on behalf of the entire Membership.

The general rule on interpretation of treaties or international instruments -- i.e. the Doha Ministerial Declaration -- can be found in the 1969 Vienna Convention on the Law of Treaties. Article 31 of the Vienna Convention requires that the terms of the international instrument be given their ordinary meaning "in their context and in light of its object and purpose." The context, as stated in Article 31(2) and (3), includes not only the text itself, but also the preamble, annexes, and the following:

• any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;
• any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty;
• any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
• any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and
• any relevant rules of international law applicable in the relations between the parties.

However, when the context of the treaty is not sufficient in settling the ambiguity of the provision in question, Article 32 of the Vienna Convention authorizes recourse to supplementary means of interpretation such as "the preparatory work of the treaty and the circumstances of its conclusion."

As will be discussed later, simply interpreting the common phrase in Paras 20, 23, 26, and 27 without recourse to the Chair’s statement will not settle its ambiguity. Hence, as a matter of legal interpretation, it can be argued that as part of the record of the meeting, the Chair’s text forms part of the preparatory work and circumstances within which the Conference’s decision regarding the Singapore issues were made, and hence should be mandatorily taken into account when interpreting the common phrase of Paras 20, 23, 26, and 27.

The 1996 Singapore Ministerial Declaration says, referring to the issues of investments and competition: "It is clearly understood that future negotiations, if any, regarding multilateral disciplines in these areas, will take place only after an explicit consensus decision is taken among WTO Members regarding such negotiations."

The change in phraseology from the Singapore to the Doha Ministerial Declarations, as well as the exact phrasing of both the Doha text and the Chair’s explanation, are crucial in determining exactly what was meant by the phrase in the Doha text.

"Explicit consensus", it seems, will require that all Members should expressly indicate their concurrence with the decision to be made before it will be deemed to have been agreed upon by consensus. This is to be contrasted with the current "passive consensus" practice in which the failure to raise any objection to the decision to be adopted is presumed to mean that the Member is joining the consensus -- even if that Member was absent at the meeting in which the decision was made.

Furthermore, the fact that the 1996 Singapore Ministerial Declaration requires "explicit consensus" on the decision on whether or not to launch negotiations on the new issues should be considered together with the requirement in the 2001 Doha Ministerial Declaration for an "explicit consensus" on the modalities for such negotiations.

Read together, the requirements for "explicit consensus" stated in both Ministerial Declarations can be understood to mean that there are two (2) situations in which "explicit consensus" is required on the question of new issues, and implicitly lays down a logical progression. That is, in order for negotiations on Singapore issues to commence, WTO Members must:

1. First, agree at the Fifth Ministerial Conference, by explicit consensus, on the modalities for the negotiations, as required by the Doha Ministerial Declaration; and
2. Second, the Singapore Ministerial Declaration requires that any decision to launch negotiations on Singapore issues must be done by explicit consensus. The Doha Ministerial Declaration requires that any such negotiations must be "on the basis" of the explicit consensus decision on modalities for the negotiations. Taken together, this means that WTO Members can: (a) only make a decision to launch negotiations only after they have made an explicit consensus decision on modalities, as required by the Doha Ministerial Declaration; and (b) any such decision to launch Singapore issues negotiations must also be done by explicit consensus as required by the Singapore Ministerial Declaration.

The phrase common to Paras 20, 23, 26, and 27 of the Doha Ministerial Declaration, to wit: "we agree that negotiations will take place after the Fifth Session of the Ministerial Conference on the basis of a decision to be taken, by explicit consensus, at that Session on modalities of negotiations;" can be interpreted such that it recognizes the requirements laid down by both the Singapore and Doha Ministerial Declaration with respect to the launch of negotiations on Singapore issues.

The phrase "negotiations will take place after the Fifth Session of the Ministerial Conference" can be interpreted as simply being descriptive but not mandatorily binding -- i.e. it does not bind Members to any commitment to launch such negotiations after the Fifth Ministerial. The phrase does not indicate any specific timeline of exactly when after the Fifth Ministerial should such negotiations be commenced, hence indicating that the decision to do so continues to be at the discretion of the Members. Using this interpretation, the preparatory "clarificatory" work on these issues referred to in Paras 22, 25, 26, and 27 of the Doha Declaration should be seen as simply another study process in which Members simply state their views of particular points in relation to the new issues, rather than initial negotiations focused on detailing the basic elements of the proposed agreements on new issues.

The subsequent phrase "on the basis of a decision, by explicit consensus, at that Session on the modalities of negotiations" should be read together with the preceding phrase. This phrase indicates that the premise or basis of any future negotiations on new issues must be a decision to be taken at the Fifth Ministerial, by explicit consensus, on the modalities of such negotiations. This implies that Members must first agree, by explicit consensus, on modalities of the negotiations BEFORE they can then agree, again by explicit consensus, on whether or not to undertake negotiations on such new issues. In WTO jurisprudence, the phrase "based on" -- i.e. which is semantically equivalent to the phrase "on the basis of" -- is interpreted in a broader manner than the phrase "conforms to". The former is more flexible such that the outcome of a decision "based on" or "on the basis of" another decision is not necessarily predetermined by the latter.

In short, under this interpretation, only one (1) decision is asked of Members AT the Fifth Ministerial -- i.e. that Members have an explicit consensus on the modalities for negotiations on new issues. The final decision on whether or not to actually launch such new negotiations on new issues as part of the Doha Work Program will have to be taken, by explicit consensus, AFTER the Fifth Ministerial Conference, and only AFTER Members at that Session have made an explicit consensus decision regarding the modalities for such negotiations. Without such explicit consensus decision on the negotiating modalities having been FIRST made at the Fifth Ministerial Conference, Members cannot and should not make any decision regarding the launch of negotiations on the new issues before, during, or after the Fifth Ministerial Conference.

Without the prerequisite prior decision having been first made at the Fifth Ministerial regarding the modalities for such negotiation, any decision taken by Members regarding the launch of negotiations on new issues would have no basis. This would be in direct contravention with the requirements laid down in Paras 20, 23, 26, and 27 of the Doha Declaration for the launch of such negotiations -- i.e. that it be done on the basis of a prior decision on modalities.

Under this interpretation, Members opposed to any negotiations on new issues can block the launch of such negotiations by:

• Insisting that the preparatory work in Paras 22, 25, 26 and 27 be focused on "clarification" -- i.e. non-binding discussions -- rather than initial negotiations on the draft texts of the basic elements of the proposed agreements;
• refusing to join consensus on the decision to be made at the Fifth Ministerial Conference regarding the modalities of the proposed negotiations; or
• refusing to join consensus on the decision to launch negotiations on new issues as part of the Doha Work Program.

* Written by Vicente Paolo B. Yu III, WTO Program Officer, Friends of the Earth International (FOEI). The statements in this paper do not necessarily reflect the official position of FOEI or its member organizations.