The law according to Justice Feliciano

(Conclusion)

I received quite a number of e-mails on my article last week and endeavored to answer those which do not find their answers in this, the second part:

4) Trade Facilitation: Studies indicate that 2 to 3 percent of the value of export products can be reduced if trade facilitation is effected. On this aspect, technical assistance for capacity building would be necessary for developing countries for faster release of goods upon arrival at port.

5) Special and Differential Treatment (SDT): These proposals number 88, four-fifths of which come from LDCs. Historically, GATT in 1947 was essentially a forum of reciprocal tariff cuts. In 1964, after the birth of a new trade and development organization (UNCTAD) in the United Nations, Part IV was appended to GATT for a limited special and differential treatment. The Uruguay Round expanded it, and under the WTO, there are five categories of SDT, only two of which are categorical, i.e., the transition period or the longer time frame, and less obligations in some aspects such as in cutting subsidies. Since developing countries can hardly afford to subsidize, and the usual five-year transition is past, the developing countries have all banded together to insist on new modalities in these negotiations, such as the so-called "special products" in agriculture, and "flexibilities" to exempt at least 5 percent of tariff lines not exceeding 5 percent of the import value of industrial products for the negotiations. It is believed that in these negotiations, the developing countries are one in seeking SDT, which are not mere exhortations.

It is provided in the DOHA Ministerial that SDT should be embedded in all the agreements. At least for the LDCs, there is a consensus that developed countries should give them duty-free and quota-free entry for their products but tariff preferences of other developing countries are still under negotiation.

6) Implementation Issues: There are a number of proposed amendments to the WTO agreements which are meant to remove inequities in the implementation of the agreements. There seems to be strong resistance to amend existing agreements since this may disturb the balance in these agreements.

7) Rules: There are proposals to revise certain rules, particularly on dumping. On this issue, 45 percent of the cases are against developing countries. It is noted, however, that developing countries are both dumpee and dumper, hence the difficulty of negotiating amendments to the agreement.

8) Trips: There is the proposal to extend protection for geographical indications outside wines and spirits. This may be an administrative nightmare for some countries. Some have taken the position that trademark should be used instead.

9) Trade and environment: There is a need to review various international agreements on the environment that can impact on the implementation of the technical barriers to trade and phytosanitary rules. Closer exchange of information and coordination in the implementation of "Multilateral Environmental Agreements" (MEAs) is being advocated. The exchange of information would probably be no problem but the implementation impact may need further discussion.

10) Dispute Settlement Understanding: For the developing country to avail itself of dispute settlement, it must have the necessary resources. A proposed fund for this purpose is suggested.

It may be good to consider that new modalities for enforcing decisions of the appellate body should be explored since the usual way of discriminating against exports of a recalcitrant developed country, as a penalty, may not work for imposing retaliatory measures, since the trade of such country with the developed country may be quite small and can just be ignored.

Conclusion: There are negative assessments of the Round so far, for indeed, up to now, there is nothing concrete except the agreement of the EU to remove export subsidies by 2013 which some commentators say is not due to the negotiations but because internally, the EU have agreed that because of their growing number, they intend to dismantle the same for the reason that they can ill afford to grant the subsidies.

The negotiations, however, can be viewed with some kind of success. For the first time, developing countries are standing their ground, insisting that the level of development of the negotiating countries should be a factor in all aspects of the negotiations.

While the strength of developing countries is now being felt in the WTO, the benefits are clearly for the LDCs, and rightly so, hence the duty-free and quota-free entry of their goods in developed countries as agreed, but the "less developed countries," which are not clearly LDCs like the Philippines and Indonesia, are lumped together with the more advanced developing countries. For fear of a free ride by these countries, the less advanced developing countries are forgotten. There must be some kind of differentiation, such as the provision in the Subsidies Agreement which enabled countries with per capita of less than $1,000 to grant export incentives. If such differentiation in varying aspects is possible, this will enable countries such as the Philippines to really enjoy special and differential treatment.

In all these negotiations, it is not enough that developing countries gripe about the inequities of the various agreements. There must be very concrete proposals which are binding. Unlike the present WTO agreements where there are a number of provisions which mention the special needs of developing countries and aim to increase their participation in world trade, these are not legally binding provisions.

In sum, in assessing DOHA at this stage of the negotiations, its major accomplishment is the strength of developing countries to fight for their concerns. It is hoped also that DOHA will bring more situational flexibilities to all developing countries to make it really a development round.

The Round is supposed to conclude in December 2006, but there are serious doubts as to whether this deadline will be met. The modalities on how tariff cuts will be made, the guidelines on "special products," the parameters of the flexibilities to be granted to developing countries on non-agricultural products, how much support will be cut, have to be agreed upon by April 30, 2006 so that the schedule of products can be submitted by July 2006. All these agreed deadlines are ambitious but maybe, with the newfound strength of developing countries, DOHA will accomplish its objectives not necessarily in December but in the near future.

The above insights given by Ambassador Bautista in her conclusion should be able to answer at least eight of the e-mails I received about the first part. The views expressed by her, a sharp and seasoned former representative of our country to the WTO, are good insights which every interested citizen should be concerned about. I feel good about the concern displayed by readers/citizens in our struggle for a more meaningful democracy before the WTO.

As we watch our own country right now come to terms with its own democracy, there are words that come to mind from Robert F. Kennedy, the late US Attorney General of the United States: "Democracy is no easy form of governance. Few nations have been able to sustain it. For it requires that we take the chances of freedom; that the liberating play of reason be brought to bear on events filled with passion; that dissent be allowed to make its appeal for acceptance; that men chance error in their search for truth."