In response to this need, ICTSD has engaged in a bottom-up assessment of the strategies that individual developing countries have developed to enhance their ability to make use of WTO dispute settlement and to coordinate such activities among public and private stakeholders on a national level. The outcome is the form of nine country studies is now presented in the book Dispute Settlement at the WTO – The Developing Country Experience. Countries covered in the analysis include Brazil, Argentina, China, India, Thailand, Bangladesh, Egypt, South Africa and Kenya. The publication concludes with a comprehensive list of recommendations. For further information kindly consult our webpage at: http://ictsd.org/i/dsu/98179/.

The EU cited the 25 May decision as an example of its good faith efforts to comply with the WTO ruling from September 2006, which found that European countries illegally hindered the trade of GM foods (see Bridges Trade BioRes, 6 October 2006, http://www.ictsd.org/biores/06-10-06/story1.htm). The panel ruled that several aspects of the EU’s approval process for GM products violated the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). Specifically, it ruled against the EU’s failure to approve a number of biotech products (referred to as ‘product-specific measures’), and against national-level bans in several EU member states on the marketing and import of specific biotech products that had already been approved at the EU-wide level. The ruling was based on a complaint brought in 2003 by the US, Argentina and Canada.

The announcement confirming that Austria has lifted its national level ban came long after the original November 27, 2007 deadline originally set for compliance. While Austria will allow the import and processing of GM corn, it will not allow it to be planted in Austria.

The decision comes as a victory for the European Commission (EC), as the Austrian government has long been among the most resistant toward GM crops. Austria banned the import and processing of MON810 in June 1999 and T25 in April 2000 because of concerns on the effect on non-target organisms and the risk of cut-crossing GM maize with wild relatives.

Forcing individual Member states to comply with EU WTO obligations on biotech foods is a difficult process. Efforts by the European Commission to force the repeal of Austrian safeguard measures through a draft decision have been rejected by EU ministers in the Environment Council (see Bridges Trade BioRes, 19 January 2007, http://www.ictsd.org/biores/07-01-19/inbrief.htm#4.

On a related note, the UK has renewed discussion on relaxing EU rules on GM animal feed imports, citing rising food prices. At a 19 June summit in Brussels, UK Prime Minister Gordon Brown indicated the UK’s willingness to open its market to GM products after discussion with the Agricultural Biotechnology Council.

ICTSD reporting; “EU says Austria has lifted a ban on importing, processing genetically modified corn,” ASSOCIATED PRESS, 24 June 2008.

WEBSITE: NONTARGET EFFECTS OF GENETIC MANIPULATION. The Nature Institute has unveiled a new website designed to set the public debate about genetic engineering upon a more accessible scientific foundation. Distilling a voluminous technical literature, the website gathers together — often in the researchers’ own words — information about both the intended and unintended consequences of transgenic experiments. The emerging picture tells a dramatic story — one that has scarcely begun to inform the public conversation to date. The website is part of The Nature Institute’s ongoing project on “The Nontarget Effects of Genetic Manipulation.” See the website at available at http://nontarget.org.

THE RIGHT TO FOOD AND THE IMPACT OF LIQUID BIOFUELS (AGROFUELS). By Asbjørn Eide, 2008. This study examines the impact of biofuel production on the enjoyment of the human right to adequate food and the fundamental right of everyone to be free from hunger. It follows from internationally recognised human rights that States have a core obligation to ensure freedom from hunger for all, and that any decisions which may negatively affect the enjoyment of the right to food should be reviewed. This has also been reiterated by the UN Human Rights Council in its resolution adopted on 22 May 2008 as the result of its special session on the food crisis from a human rights perspective. This paper therefore explores whether and to what extent biofuel production has undermined or is likely in the future to undermine or weaken the access to food for vulnerable people, and whether there are any overriding ethical concerns that can justify biofuel production even if it harms access to necessary and sufficient food to avoid hunger. Download at http://www.fao.org/righttofood/publi08/Right_to_Food_and_Biofuels.pdf.

“Traditional knowledge and intellectual property rights: A note on issues, some solutions and some suggestions.” By Krishna Ravi Srinivas. ASIAN JOURNAL OF WTO AND INTERNATIONAL HEALTH LAW AND POLICY, Vol. 3, No. 1, pp. 81-120, March 2008. This article discusses the issues in intellectual property protection for traditional knowledge. After discussing the definitional issues in traditional knowledge, it examines the current global debates on this issue. It identifies some solutions and provides an analysis of the solutions. It then highlights the North-South divide in this issue and the predicament of the south in finding an acceptable solution. It ends with some suggestions for arriving at a solution and argues that there is a need to go beyond intellectual property rights to resolve this issue. This paper is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1140623.

TRENDS IN SUSTAINABLE DEVELOPMENT 2008-2009, 2008. By DESA, April 2008. The report finds that efforts to reduce poverty and improve food security in developing countries are hampered by declining support for strong agricultural growth, long considered a hallmark of successful poverty reduction strategies. Strong agricultural growth is four times more effective than growth in other sectors in benefiting the poorest half of the population. Download at http://www.un.org/esa/sustdev/publications/trends2008/.

The WTO AoA is not averse to certain non-trade issues. Indeed, the agreement provides some considerable latitude for governments to pursue important non-trade concerns such as rural development, food security, the environment, structural adjustment measures and poverty alleviation. Article 20 specifically accepts that negotiations have to take non-trade concerns into account.

At Doha, ministers struggled to find a compromise acceptable to all WTO Members, who were (and continue to be) utterly divided over how to deal with agricultural export subsidies. The EU — a liberal user of this export competition tool — rejected the draft language presented to ministers, which called for the reduction of export subsidies “with a view to phasing [them] out”. The phrase emerged from prolonged negotiations with the qualification that the talks must be carried out “without prejudging the outcome of the negotiations.” Thus, while many agricultural exporters rejoiced in finally getting a ‘commitment’ to the elimination of export subsidies, the EU and countries such as Japan, Norway and Switzerland have since stressed that Members are only committed to ‘working in the direction of’ such elimination and have not agreed to a deadline for reaching the goal.

Another ambiguous point is which export subsidies the negotiations would aim to phase out. In an uneasy compromise between the US position that the talks should focus on export subsidies and the EU demand that they cover all forms of export support (including export credit schemes, which the US is a main user of), the Ministerial Declaration speaks of “all forms of export subsidies.” The negotiations are also to aim at “substantial reductions in trade-distorting domestic support.” While some Cairns and Like-minded Group members regard this mandate as a potential gate for negotiations on all categories of subsidies, Members such as the Europeans and Japan maintain that it only refers to support notified under the Amber Box of trade-distorting subsidies (comprising production-linked subsides, price support, etc.).

As predicted by most observers of the WTO’s agricultural negotiating process, WTO Members were unable to adopt agricultural modalities by the end-March 2003 deadline set by trade ministers in Doha.

However, since a farm deal at Cancun will be the deal-maker, or -breaker, of the whole Doha Round, both the membership and Chair Harbinson of the agriculture negotiations have been involved in efforts since the end of March to bridge the many wide gaps in positions. After weeks of intense high-level negotiations, two key players in the debate — the EC and the US — arrived at a “Joint Text” on 13 August, setting out the parameters for reduction commitments and related disciplines for the key outstanding negotiating issues. Although the text did not offer concrete numbers, it showed there was immense political will to find a compromise, with the aim to finally trigger more substantive talks on commitments. And indeed, for the first time in the three-and a- half-year process, real negotiations have started, with the EC and US — as well as other Member coalitions — willing to move from their initial positions.

However, whether a framework text, along the lines of the EC-US ‘soft’ deal, would be acceptable to all actors in the negotiations remains to be seen. With the WTO now counting 146 Members (of which the EC comprises 16), the days of the Blair House 1992 Agreement - where a bilateral deal hammered out between the EC and the US subsequently served as the basis for the multilateral Agriculture Agreement and the conclusion of the Uruguay Round single undertaking - are certainly over. It is also uncertain whether developing country Members are willing to take on new - rather ambitious - commitments in other areas such as industrial goods, or ‘New Issues’ without clear knowledge of what they will gain in agriculture. In particular, it seems doubtful that the four West- and Central African least-developed countries (LDCs) Benin, Burkina Faso, Chad and Mali could continue supporting the ongoing trade round without receiving clear and binding commitments at Cancun from major cotton subsidisers such as the US and EC to phase out all subsidies related to cotton in the medium term.

However, while both finding a way to deal with the cotton problem and determining concrete numbers for the agricultural modalities by or at Cancun seems doable, the question remains whether the large agricultural exporters would agree to an approach along the lines of the joint EC-US proposal. Under this approach, weaker countries would benefit more from new market openings than others. Moreover, it remains unclear whether the “significant net food exporting [developing] countries” such as Argentina, Brazil, Chile and Thailand could accept getting less special and differential (S&D) treatment than would be granted to other countries of the South, as proposed by the EC and US in their new text. However, if like-minded developing countries such as Sri Lanka and Pakistan as well as the African Caribbean and Pacific group would accept the EC-US model, it would - at the end of the day - be difficult for the Cairns group and others to make the political case against such a differentiated approach, especially if this jeopardised gains in S&D for the rest of the developing country membership.

These concerns cannot be overlooked, particularly in lower income countries where agriculture employs nearly three quarters of the labour force and generates around 30 percent of GDP. According to the FAO, the implementation of reform commitments under the WTO Agreement on Agriculture (AoA) by developing countries has been associated with increased cases of import surges, which have damaged or threatened to damage or displace viable domestic production1 (FAO, 2000). Existing evidence suggests that marginalized and resource poor farmers in particular faced economic and social adjustment challenges associated with the liberalization of domestic agriculture markets.

Against this backdrop, numerous developing countries have been reluctant to engage in further trade liberalization under the Doha Round without ensuring adequate flexibilities to enhance their domestic food production and protect the livelihoods of their rural poor and small farmers. Special and differential treatment (S&DT) for developing countries, integrated in the design of trade rules, represents one effort to address these concerns. Such differentiated treatment kicked into place during the Uruguay Round, in which agriculture became subject to multilateral disciplines for the first time. As the pace of agricultural liberalization grew, many developing countries realized that these provisions, often confined merely to longer time periods for implementation and lower tariff reduction commitments, would not be effective in safeguarding their development concerns. The concept of Special Products (SP) and the Special Safeguard Mechanism (SSM) thus emerged as alternative proposals to address these objectives.

In the latest set of developments, WTO Members agreed on 1 August 2004 on a framework in agriculture that will constitute the basis for the negotiations of full modalities - the next phase of the negotiations. Paragraph 41 of the framework clearly states that “Developing countries will have the flexibility to designate an appropriate number of products as Special Products, based on criteria of food security, livelihood security and rural development needs.” The text also indicates that the criteria and treatment of Special Products will be further specified. In addition, paragraph 42 states that a Special Safeguard Mechanism will be established for use by developing countries, the details of which will be developed in the next phase of the negotiations. One of the key challenges now facing WTO Members is to devise effective criteria for the selection of SPs and the parameters for the use of the SSM, and to work out modalities to operationalise those two concepts.

After reviewing existing WTO mechanisms for protection against import surges and market fluctuations by developing countries, this paper analyses the negotiating history of the SP/SSM concepts and the positions of key WTO Members and country groupings. The paper then briefly describes the relevant provisions of the August Decision, and discusses their significance. Finally, it provides an overview of the options proposed by various experts to deal with some of the key issues surrounding the SP/SSM mechanisms, and highlights the need for timely and policy-oriented research and dialogue in order to provide an informed input into the WTO negotiating process.