Geneva 15 Nov (Chakravarthi Raghavan) -- Participants in the Uruguay Round were generally upbeat Monday night about the prospects of a successful conclusion by 15 December, hedging this though on the NAFTA vote in the US House of Representatives (17 Nov) and its likely fallout either way.

The optimistic assessments came after the stocktaking exercise in the Negotiating Group on Market Access and the conclusion of the work of the Informal Group on Institutional Issues, under the Chairmanship of Amb. Julio Lacarte Muro of Uruguay, with agreement on near-clean texts on the Multilateral Trade Organization (MTO) and Dispute Settlement Understanding (DSU).

India's Amb. Balkrishan Zutshi said that a large number of developing countries had been indicating the improvements they would make on their 'offers' if others, particularly the majors, reciprocated it in providing them market access concessions.

Zutshi also said the conclusion and outcome of the Lacarte group marked "significant progress" in the negotiations and the pace of negotiations would quicken in Geneva from next week.

The US delegate and acting chief of the mission, Andrew Stoler, who also came out of the Lacarte Group meetings expressed satisfaction at the outcome and the agreement on clean texts, but made clear that the US still maintained its position on a 'contractual' approach to the final outcome rather than one creating a new organization, and that the US would put forward a text (as an alternative), incorporating the agreed parts of the MTO text with its protocol, contractual approach.

In giving an optimistic assessment, Third World participants in the negotiations said that major hurdles to the conclusion still remained in the shape of the likely effects on the Round of the US Congressional vote on Nafta, the position and situation of the four Quad participants (Canada, EC, Japan and the US), particularly the US and the EC, and their mutual differences as well as in relation to other participants, both on market access issues and some of the other substantive questions.

If the US House of Representatives votes against NAFTA Thursday, it is bound to have a chilling effect on the Uruguay Round negotiations, several of the participants said Monday night as they came out of the two meetings -- not so much because of the NAFTA, but in terms of relationships involved between the US President and Congress and what it means for international negotiations.

And if Nafta passes by a thin margin -- many negotiators and US observers expect this, given the powers of any President and his ability to 'buy' votes by various 'sweeteners' for the constituencies of the difficult Congressmen -- the US might 'demand' so much on a wide range of issues (including on the MTO) that a conclusion would only be possible by others 'giving in'.

And while the US is still a pre-eminent economic power and major market for others, it is no longer in the same situation as in the immediate post-war period and needs the market of others too and can't live in isolationism of the past.

But if others 'give in' to the US there will be much less of the 'rule-based system' and its security for business and investors about there has been much talk and the outcome of the Uruguay Round.

But US objections to, and attempts to distinguish between a treaty and a protocol, or talk about its preference for a 'contractual obligation' instead of a treaty membership, has never been clear.

There are several international agreements and treaties that also involve rights and obligations for its signatories, and many also speak of the signatories as "Contracting Parties" or "Parties" -- and whether they are called organizations or not, they have provisions for administration of the agreement in the form of governing bodies, and secretariats with specified powers.

US officials often explain their opposition to the 'MTO' in terms of the 'reactions' in their country to the International Trade Organization under the Havana Charter that was rejected by the Congress and opposition of their domestic lobbies about Congressional legislative power being taken away and that its own 'protocol' approach would have all the effects without calling it an organization.

While NGOs -- environmentalists, genuine or protectionist, labour, and development groups -- in the North and the South have focused on the term 'MTO' to mount their opposition to the Uruguay Round, everyone knows it is in terms of the contents they don't like -- for example over the TRIPs accord and its implications for genetic patenting and the rights of farmers or the power of the TNCs.

But US can't expect others to believe that its Congressmen or lobbies are so naive as to be 'fooled' by absence or presence of the term 'organization' or anything else in accepting or rejecting the Uruguay Round accord and this makes others look for the 'small print' or the 'hidden provisions' in the US proposals and look at it with much suspicion.

Many of the key negotiators from other countries in this entire debate have insisted that they had no particular hangup over names, and if the Americans accept all the substance (including the definitive nature of the treaty and agreements and all that it implies in international law), they could go along with any name by which the Americans want the post-Uruguay Round institution to be called.

When in December 1992, the Americans put forward their alternative, a protocol for a "GATT-II" instead of the MTO, in a pun on its French pronunciation it was derisively described as 'Gt' (something rotten or spoilt). Its present term 'GAT' (General Agreement on Trade), in US slang (abbreviation for gatling) means a revolver or other fire-arm, and typifies for others the US stance of unilateralism and threats to have its way and not abide by international law and obligations.

One of problem for others in the GATT-II (as in the GAT text the US has privately circulated to several delegations, but none of whom has been willing to take cognisance of it or talk about it, with the Americans or in the Lacarte group) was that it left the obligation to change domestic laws and administrative procedures etc on a 'best endeavour' commitment of the Ministerial Declaration to wind up the Round, but without any legal significance afterwards.

At that time the MTO text (in the Dunkel DFA) also had a 'best endeavour' clause, but as a part of the treaty and to outsiders the distinction between the two was not very clear. But a 'best endeavour' in a treaty has a higher legal obligation in terms of actual conduct and endeavour than a Ministerial Declaration or Statement or like the 'Final Act' signed by plenipotentiaries at the end of a treaty process.

But the new MTO text (in Art XVI:4) has a specific obligation and would require its members "shall ensure the conformity of their laws, regulations and administrative procedures with the provisions of the annexed Agreements".

This still has square brackets around it (as in one or two other provisions) and the US may return to them later -- either at the TNC level of global consideration of all outstanding issues or even the final Ministerial meeting in Marakesh -- which is to decide on the 'institutional implementation' of the accords in terms of the Punta del Este mandate.

In strict legal terms, while the term 'protocol' is normally used to describe an agreement which is additional or supplemental to an existing treaty, there is enough 'misuse' of terminology in current international law and practice to make it a distinction without a difference.

In any way a free-standing protocol is as much binding on those who accept it as a treaty as a protocol which is supplemental to a treaty and accepted by those treaty signatories. And in terms of Article XXVI of the Vienna Law of Treaties, it involves 'free consent, good faith and full implementation' -- terms which mean that they would bring all their laws, regulations and administrative procedures into conformity with the obligations they undertake.