TNC FORWARDS TO MINISTERS SQUARE-BRACKET-STUDDED TEXT.

Nov 28, 1990

TNC FORWARDS TO MINISTERS SQUARE-BRACKET-STUDDED TEXT.

GENEVA, NOVEMBER 27 (BY CHAKRAVARTHI RAGHAVAN) – The Trade Negotiations Committee, meeting at official level, Monday night took note of and forwarded to the Ministerial meeting at Brussels a 391-page document peppered with square brackets (indicating areas of disagreement) which has been described as "Draft Final Act Embodying the Results of the Uruguay Round Multilateral Trade Negotiations".

GATT officially continued to say that the Brussels meeting will conclude the negotiations.

But as the Asian statement by Philippines put it at the Monday night meeting "We now no longer have illusions of formally concluding the Round in Brussels. What we are now hoping is that by the final hours of 7 December 1990, we would have the basis to proceed in assembling the sequential and technical decisions needed to wrap up the Uruguay Round package". Technically, the TNC merely took note of the document prepared by the secretariat and presented by GATT Director-General Arthur Dunkel, in his capacity as chairman of the official-level meetings of the TNC.

In doing so, the GATT made more history, and if Dunkel's procedural suggestions adopted without objection by the formal TNC, holds good, and if by a miracle a package of sorts emerges at Brussels and the Round is to be concluded, GATT would have made more "legal history", as one observer put it. The document, containing the "texts" evolved in various negotiating groups, with "commentaries" on each of the texts in the 15 areas covered by the negotiations in goods and services, outlining the substantive political decisions that the Ministers would have to take was available physically to delegates just a few minutes before the TNC formally met.

The texts, with square brackets within them indicating areas of disagreement and/or alternative formulations, was available in some form to the participating delegations in the negotiations and hence perhaps familiar to them. But not all the participants in the negotiations as a whole, not even the major Third World players, have been able to field enough bodies to be present at the informal and formal meetings in each of the areas.

The "commentaries" drawn up by the Chairman and hammered out in the "green room" consultations were perhaps familiar to the participants in the consultations.

At the informal meeting of the TNC on Friday evening Dunkel had presented a document with the proposed text of the "Final Act" listing the titles of the various elements in various negotiating areas to go before the Brussels meeting and indicating that they will be accompanied by commentaries.

Most of the commentaries had not been ready then, and the one on agriculture was formulated only over the week on the basis of notes supplied by the participants to Dunkel. But none of the delegates at the Monday night TNC meeting had had a chance even to look at the 391-page document, though they took "note" of it and "forwarded" it to the Brussels meeting.

One of the delegates, when asked before the meeting as to how he would be sure that all that he had agreed to or disagreed with had been fully reflected in the document, said that every participating delegation was familiar with the square-bracketed texts in each of the areas (and the lack of texts in some) and that his delegation having participated in the "green room" consultations was also familiar with the commentaries that Dunkel was expected to put forward on the issues needing Ministerial decisions.

All that his country's delegation would have to do, he said, would be to go through the commentaries to make sure his country's viewpoints were also reflected.

The delegate could not be reached after the meeting to check whether in fact he had been able to go through the commentaries in the short time available to make sure even of this.

But with the delegates actually getting two copies each only when they assembled inside the GATT room where the meeting was being held, and the meeting having been called to order and the document soon taken note, it would have been physically impossible to check even this limited part of the documentation.

And for those who were not in the "green room" even this would not have been possible.

According to participants, the TNC agreed to Dunkel’s suggested procedures for the Brussels meeting to "simplify" matters.

There would be no need, he reportedly said, to ask for credentials from capitals, and the list of delegations signed and notified by the permanent missions could be accepted.

. The "Final Act", as the document is specified, he further suggested could be adopted by "consensus" - this he said was one of the ways prescribed under the Vienna Law of Treaties, the other being signatures of plenipotentiaries - and would not need signatures of the participating delegations, but that at some point the texts would need to be initialled in Geneva.

The question of acceptance or commitment would only arise at the time of the meeting of Trade Ministers on the occasion of a Special Session of Contracting Parties to decide on the international implementation of the results.

Such a meeting is foreseen only for November-December 1991, and for the agreements coming into force on January 1, 1992.

Dunkel also reportedly added that the document could be termed a "Final Act" or a "process verbal".

This last term, some delegates said, had probably been used since if the document is agreed to by Ministers, is to include some commitments and agreements, unlike a Final Act.

The draft being sent up is so worded that it goes beyond the accepted meaning of these terms and implies commitment by governments of the participating countries - for example on creation of the proposed new Multilateral Trade Organisation, as well as on acceptance by governments of the package of agreements.

A Final Act under the Vienna Law of Treaties' implies no more than that the plenipotentiaries signing the document (or assenting to it by consensus) agree that the texts annexed to it are the authentic texts of the agreements actually negotiated and concluded by them, and would commit them merely to carry them back to their capitals for consideration by their governments.

But even if this latter type of text alone ultimately emerges, the Final Act could be accepted, whether by signature or by consensus, only by plenipotentiaries authorised by governments to negotiate and conclude agreements.

But the decision about credentials would not allow this.

Except for Heads of Governments and Foreign Ministers, other Ministers, however high their political office and authority inside their own countries, are not automatically plenipotentiaries, but have to be so authorised and provided with plenipotentiary credentials to negotiate and conclude agreements by their governments. This is so for ambassadors and delegates too.

How one would be sure that those at the Brussels final meeting adopting the "Final Act" are "plenipotentiaries" authorised to conclude agreements and adopt a Final Act, within the meaning of the Vienna Law of Treaties and domestic procedures for appointments with plenipotentiary powers, was an issue that apparently no one asked at the night TNC meeting and Dunkel did not have to clarify.

Perhaps, suggested one delegate, this itself showed that the Brussels meeting was not intended to conclude or adopt a "Final Act", and what was being sought to be pushed through by the secretariat and the EEC which was very much behind it was a commitment and acceptance by delegates, in an area not covered at all by the Punta del Este mandate, namely the establishment of a new International Organisation, covering not only the areas of trade in goods (so far dealt with by GATT) and in services, but a whole gamut of international rules governing internal economic and social policies of participants covered by the various subjects and areas on the agenda of the Uruguay Round.