The WTO Non-Agricultural Market Access (NAMA) negotiations and developing countries: In pursuit of the ‘development agenda’

Abstract

The Non-Agricultural Market Access Negotiations (NAMA) are being undertaken as part of the Doha Round of negotiations. NAMA negotiations are aimed at the trade liberalisation of industrial goods. Pursuant to the ‘development agenda’ adopted for the Doha Round, the NAMA negotiations also emphasise the development component. Particular emphasis is be made on tariff reductions in products of export interest to developing countries and the negotiations are to take special account of the needs and interests of developing countries, including through less than full reciprocity in accordance with the General Agreement on Tariffs and Trade (GATT) provisions on special and differential treatment (SDT). This research attempts to determine this ‘development agenda’ through the prism of special and differential treatment as provided for in the NAMA mandate. An analysis of the SDT provisions in the World Trade Organisation (WTO) and their application within the multilateral trading system reveals that SDT is a very controversial concept. Developing countries have used SDT to escape the strictures of multilateral trading rules and developed countries have used it as a ‘carrot and stick’ tool, to gain concessions from developing countries in other areas. SDT has further been revealed as a concept whose meaning and content is not very precise. While the provisions in the GATT as well as the Enabling Clause make good political and economic sense, they are not really actionable. This is because the concept is characterised by best-endeavour provisions that lack any legal force and cannot be adjudicated in the WTO Dispute Settlement Body. Developed countries have thus not been called and cannot be called, legally, to account for lack of delivery on their commitments and obligations with regard to SDT. This has effectively constrained the use of SDT as a development tool within the WTO, and, being the only tool being utilised, there needs to be found an alternative way to address development needs in the WTO. The WTO has sought to address this through efforts to amend SDT to make it more precise, effective and operational. The content and meaning of the ‘development agenda’ itself in the Doha Round is very elusive and an effort is made in this paper to determine the appropriate meaning of development in relation to the multilateral trading system. Development as an objective in the WTO is not novel to the Doha Round. The WTO is littered with references to development and the betterment of the human condition in its preamble to agreements and other provisions. Development has to be considered in al its three dimensions: social, political and economical. While this paper does not advocate that the WTO become a fully fledged development institution, it can shape its development agenda in such a way that benefits on the economic front are designed to stimulate socio-economic development as well. An analysis of the NAMA modalities reveals that mercantilist objectives have triumphed in the negotiations and SDT has been lost by the wayside. Developed countries have sought for radical tariff reductions on the part of developing countries, with meagre flexibilities that are further constrained by requirements that no full sector be excluded from the formula cuts. SDT has not been considered and the commitments are not proportional to the development capacity of most developing countries. This is in direct contradiction to the SDT provisions in the GATT that are supposed to guide the negotiations as well as the provision on tariff negotiations. However, the modalities are not legally contestable because the SDT provisions do not hold any legal suasion. The NAMA negotiations reveal a development vacuity within the WTO that needs to be resolved by other means other than the traditional SDT. Taking into consideration the evolving power bases and the politics of the membership of the WTO, this is an imperative. This paper proposes that Aid for Trade is the best option available to the WTO system. The concept does find support in GATT/WTO provisions on SDT and can be modified to be more predictable and sustainable.