Looking at Ambiguities in the Text of the Doha Ministerial Declaration on Implementation and the Singapore Issues

Looking at Ambiguities in the Text of the Doha Ministerial Declaration on Implementation and the Singapore Issues*

Vicente Paolo Yu III

I. Introduction

This memorandum seeks to outline and discuss major legal interpretative questions that have arisen as a result of the phraseology used in some part of the Doha Ministerial Declaration text. It will focus solely on the following paragraphs of the Doha Declaration:

Paragraph 12 on Implementation-related issues and concerns; and
Paragraphs 20, 23, 26, and 27 on the Singapore issues, together with the Chair’s statement regarding these paragraphs.

II. Implementation Issues

Paragraph 12 of the Doha Ministerial Declaration states:

12. We attach the utmost importance to the implementation-related issues and concerns raised by Members and are determined to find appropriate solutions to them. In this connection, and having regard to the General Council Decisions of 3 May and 15 December 2000, we further adopt the Decision on Implementation-Related Issues and Concerns in document WT/MIN(01)/W/10 to address a number of implementation problems faced by Members. We agree that negotiations on outstanding implementation issues shall be an integral part of the Work Programme we are establishing, and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph 47 below. In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be addressed 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, established under paragraph 46 below, by the end of 2002 for appropriate action.

The paragraph covers several decision points, to wit:

adoption of WT/MIN(01)/W/10 -- the Decision on Implementation-Related Issues and Concerns;
agreement to negotiations on outstanding implementation issues as an integral part of the Work Program, and how the agreements reached on implementation issues are to be treated as part of the single undertaking package; and
outlining the manner in which outstanding implementation issues are to be addressed.

A. Adoption of Implementation Decision

The Decision on Implementation-Related Issues and Concerns seems to mostly involve clauses that provide for varying levels of commitments. In the main, however, the Implementation Decision focuses on interpretation of various provisions in various WTO agreements, best endeavor (i.e. "urges") language for future activities of various WTO committees, and specific action-oriented language for the conduct of studies and submission of recommendations by various WTO committees.

Para 13 of the Decision, however, states that the Ministers agree that "outstanding implementation issues be addressed in accordance with paragraph 12 of the Ministerial Declaration (WT/MIN(01)/DEC/-)."

B. Outstanding Implementation Issues

How are outstanding implementation issues supposed to be addressed under Para 12 of the Ministerial Declaration? The third sentence of Para 12 states that: "We agree that negotiations on outstanding implementation issues shall be an integral part of the Work Programme we are establishing, and that agreements reached at an early stage in these negotiations shall be treated in accordance with the provisions of paragraph 47 below." Parsed out, Para 12’s third sentence states that the Ministers agree that there will be negotiations on outstanding implementation issues; that these negotiations shall be an integral part of the Work Program; and that any early agreements reached in these negotiations constitute part of the single undertaking approach and hence, in the words of Para 47 of the Ministerial Declaration, "may be implemented on a provisional or a definitive basis ... [and] shall be taken into account in assessing the overall balance of the negotiations."

While this statement regarding the conduct of negotiations seems fairly straightforward, the last sentence of Para 12 creates some ambiguity in exactly how such negotiations are to be conducted. This point will be discussed in more detail below.

The statement, however, that such negotiations on outstanding implementation issues be considered an integral part of the Work Program; and that the early agreements reached in these negotiations are part of the single undertaking, that they may be implemented provisionally or definitively, and that they shall be taken into account in assessing the overall balance of the negotiations, clearly implies that developing countries can insist that their outstanding implementation issues must be satisfactorily addressed BEFORE agreeing to make any trade-offs in other negotiating areas. On the other hand, any concessions obtained by developing countries in the negotiations on outstanding implementation issues will likely be sought to be counter-balanced by developed countries in the other areas of mandated negotiations under the Work Program established by the Doha Declaration.

The idea that developing country gains in terms of outstanding implementation issues can be subjected to trade-offs in other negotiating areas is very far removed from the initial position that outstanding implementation issues must first be addressed before embarking on negotiations in other areas.

C. Modalities for Negotiations on Outstanding Implementation Issues

The last sentence of Para 12 creates an ambiguous situation as far as the actual conduct of negotiations on outstanding implementation issues that are not covered by the areas in which there are specific negotiating mandates is concerned. It states: "In this regard, we shall proceed as follows: (a) where we provide a specific negotiating mandate in this Declaration, the relevant implementation issues shall be addressed 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, established under paragraph 46 below, by the end of 2002 for appropriate action."

This last sentence of Para 12 should be read together with the immediately preceding sentence. Hence, when the last sentence says "in this regard", it is referring to the conduct of negotiations on outstanding implementation issues referred to in the previous sentence. Because of this, the conduct of negotiations referred to in the previous sentence should be linked to the process or modalities by which such negotiations are to take place outlined in the last sentence.

There are at least two (2) major ways in which this link between the mandate to conduct negotiations on outstanding issues expressed in the third sentence of Para 12 and the expression of the modalities through which such negotiations are to take place stated in the last sentence of Para 12 can be interpreted:

Restrictive (against developing countries)

Liberal (for developing countries)

Para 12’s last sentence can be interpreted as creating two methods in which outstanding implementation issues are to be addressed:

through negotiations in areas of specific mandated negotiations for implementation issues that are relevant to such areas of mandated negotiations; and
through discussions -- rather than negotiations -- in other relevant WTO bodies (i.e. the different councils or committees) for implementation issues that are not relevant to any area of mandated negotiations, such that the conduct of any future negotiations on the issues discussed will still have to be decided by the Trade Negotiations Committee (TNC) after the relevant WTO bodies have reported back to the TNC by the end of 2002 for appropriate action.

Para 12’s last sentence can be read as simply identifying the bodies, rather than specifying the process, under which the negotiations are to take place:

the negotiating bodies for specific mandated negotiating areas created by the Trade Negotiation Committee (TNC) for the negotiation of outstanding implementation issues that are relevant to such specific mandated negotiating areas; and

existing relevant WTO bodies (i.e. the existing councils or committees) for the negotiation of outstanding implementation issues that do not fall within the scope of negotiations in specific mandated negotiating areas. Such existing WTO bodies should conduct negotiations on these outstanding implementation issues "as a matter of priority"; and report the outcome of such negotiations to the TNC by the end of 2002 "for appropriate action". This effectively establishes an end-2002 deadline for the negotiation of outstanding implementation issues that do not fall within any specific mandated negotiating area. Hence, any early agreements reached in these existing WTO bodies on these issues, and reported to the TNC by end of 2002, will be part of the "early harvests." Pursuant to Para 47 of the Declaration, such early harvests can be implemented on a provisional or definitive basis, and have to be taken into account in assessing the overall balance of the negotiations in other areas.

Regardless of which interpretation is taken, the fact that the last sentence of Para 12 lays out different ways in which various outstanding implementation issues are to be addressed is a cause for concern, especially for developing countries. It will most likely:

result in the proliferation of more negotiating bodies to discuss outstanding implementation issues, which in itself will make it more difficult for developing countries resource-wise to engage in pro-actively and productively, as well as make it more difficult to keep to a coherent and integrated negotiating strategy that will tie in all the outstanding implementation issues into a comprehensive developmental package for developing countries;
since most of the outstanding implementation issues listed in Job(01)/152/Rev.1 of 27 October 2001 do not fall within any of the specific mandated negotiating areas, it is highly likely that negotiations or discussions on these issues will go more slowly than for those issues which are relevant to specific mandated negotiating areas.

D. Placement of Outstanding Implementation Issues Within Mandated Negotiating Areas for Negotiation Therein or Within Other Relevant WTO Bodies for Negotiation or Discussion Therein

It seems that only three (3) of the eleven (11) paragraphs listing specific tirets of outstanding implementation issues raised by developing countries will be addressed in specific mandated negotiating areas. All other paragraphs (inclusive of their respective tirets) will hence have to be addressed by relevant WTO bodies "as a matter of priority" and for these bodies to report to the TNC by end of 2002 "for appropriate action" thereon.

Mandated Negotiating Areas	Outstanding Implementation Issues as Listed in Job(01)/152/Rev.1
Agriculture	Para 2
Services	None
Market access for non-agricultural products	None
Geographical indications for wines and spirits (TRIPS)	None
WTO rules on subsidies, anti-dumping and CVMs	Para 6 (including all Tirets) Para 8 (including all Tirets)
Regional trade agreements	None
DSU	None
Trade and Environment	None

Because most outstanding implementation issues will be referred to WTO bodies that have not been given specific negotiating mandates by the Doha Ministerial Declaration, the following questions regarding some ambiguous phrases in the last sentence of Para 12 must be raised and answers sought for them:

What does "addressed as a matter of priority by the relevant WTO bodies" mean? Does this mean that negotiations on outstanding implementation issues should be prioritized by such WTO bodies over and above their existing work programs?
Which are the "relevant WTO bodies" that it refers to? Does this refer to existing WTO councils or committees?
Why should such WTO bodies report to the Trade Negotiations Committee, rather than to the WTO General Council? Does this imply that for the duration of the Work Program set out in the Doha Ministerial Declaration, the TNC will exercise overall authority over the work of the WTO rather than the General Council?
What does "for appropriate action" by the TNC mean? Does this mean that the TNC can override the outcome of any discussion or negotiations conducted by existing WTO bodies on outstanding implementation issues? Does this mean that any such outcome should be automatically taken on by the TNC as part of "early harvests"? The "for appropriate action" phrase seems to imply that the TNC will have discretionary authority over the outcome of any discussion or negotiation undertaken by relevant WTO bodies on outstanding implementation issues.
Why was the "end of 2002" deadline for "relevant WTO bodies" to report back to the TNC included there? Does this imply that the outcome of negotiations on outstanding implementation issues should be considered as part of "early harvests" and hence may be traded off for concessions in other areas of the Work Program?

III. Singapore Issues

A. The Chair’s Statement

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.

The meaning of this phrase 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.

Furthermore, the WTO has implicitly indicated on its website that this Chair’s statement will not be annexed to nor made an integral part of the Doha Ministerial Declaration by saying that it (the Chair’s statement) will simply be made part of the record of the meeting.

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 (and for developing countries, should 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.

On the other hand, other countries (such as the EU) can also argue that precisely because the Chair’s text does not form an integral part of the Doha Ministerial Declaration, it will solely be the text of the Doha Declaration that would prevail.

B. Explicit Consensus

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:

First, agree at the Fifth Ministerial Conference, by explicit consensus, on the modalities for the negotiations, as required by the Doha Ministerial Declaration; and
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.

C. Negotiations on Singapore Issues

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 in various ways. There are at least two (2) major ways in which this phrase can be interpreted, to wit:

Restrictive (against developing countries)

Liberal (for developing countries)

Unlike the Singapore text which clearly made the launch of any future negotiations on these new issues subject to an explicit consensus, the Doha text can be interpreted as meaning that:

the phrase "negotiations will take place after the Fifth Session of the Ministerial Conference" can be argued as saying that Members have already agreed in principle to the launch of negotiations on new issues, with full-scale negotiations to commence immediately after the Fifth Ministerial. Hence, the preparatory work on these new issues envisioned in Paras 22, 26, 25, and 27 of the Doha Ministerial Declaration would be focused on initial negotiations concerning the basic elements of the proposed new agreements on the new issues;
such agreement in principle to the launch of negotiations on new issues after the Fifth Ministerial Conference is, however, qualified by the subsequent phase "on the basis of a decision, by explicit consensus, at that Session on the modalities of negotiations." This seems to imply that at the Fifth Session, the only decision that Members have to agree to by explicit consensus is on the modalities -- i.e. the processes, mechanisms and aims -- of the negotiations on new issues. Members will not be asked, at the Fifth Session, to decide by explicit consensus on the a priori question of whether negotiations on these new issues should be launched in the first place.

The Chair’s statement can be argued as supporting the conclusion above -- i.e. that Members have already agreed to launch negotiations on new issues after the Fifth Ministerial and that all that they have to agree on by explicit consensus at the Session is on the modalities of the negotiations. The second paragraph of the Chair’s statement indicates that the only way in which negotiations on new issues can be actually prevented at the Fifth Ministerial is if Members do not have a consensual agreement on the modalities of the negotiations.

Even under this interpretation, Members opposed to negotiations on new issues can still prevent such negotiations by:

ensuring that the preparatory work to be done pursuant to Paras 22, 25, 26, and 27 remain focused on "clarificatory" statements rather than actual drafting or negotiations on the draft text of the basic elements of each proposed agreement
refuse to join consensus on modalities of the negotiations at the Fifth Ministerial Conference

On the other hand, the Doha text, coupled with the Chair’s statement, can also be interpreted as meaning that negotiations on new issues will NOT take place until after Members at the Fifth Session have taken: (1) an explicit consensus decision regarding the modalities for such negotiations; and (2) they base their final decision on whether or not to launch negotiations on new issues on their decision regarding the modalities for such negotiations.

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.

IV. Conclusion

In summary, with respect to implementation issues, developing countries should push for the interpretation of the Doha text and craft a political position thereon that will insist that all outstanding implementation issues (not just those that are relevant to the mandated negotiating areas) be addressed first before the conduct of negotiations in the other mandated negotiating areas.

In the same manner, with respect to Singapore issues, developing countries must continue to insist that the Doha Ministerial Declaration does: (a) not mandate an automatic start to negotiations on the Singapore issues after the Fifth Ministerial Conference; (b) mandate the continuation of a study process on these issues; and (c) require that any decision to launch negotiations on these new issues must be made AFTER the Fifth Ministerial Conference and must be on the basis of, but not be determined by, a decision made at the Fifth Ministerial Conference by the Members by explicit consensus regarding the modalities for such proposed negotiations on new issues.

Legal interpretation of the Doha texts is simply a tool that countries can use to promote or defend their interests and rights within the WTO. Furthermore, unlike the provisions of the various WTO agreements, international instruments such as the Doha Ministerial Declaration do not constitute legally binding texts creating legally binding rights and obligations within the WTO system sufficient for one country to assert against another within the WTO’s dispute settlement system. The Doha Ministerial Declaration is an international political instrument, a declaration of the WTO Members’ political intentions vis-à-vis the work program of the organization. Hence, in the end, however, no amount of legal hermeneutics can substitute for political unity and cohesiveness among developing countries in asserting their rights and interests within the WTO.