The failure to agree yesterday at the WTO on the adoption of the Bali Trade Facilitation Agreement is widely being misrepresented in the media as the collapse of Bali and a new or renewed crisis for the WTO system. True to their venerable habits of ultimatum diplomacy and pushing around developing countries the old school masters of WTO diplomacy had presented a threat of crisis as a basis for pressuring India to put aside its concerns with lack of progress on a permanent food security deal and not hold up the TFA. Having failed to learn their lesson from Bali, the practioners of old fashioned ultimatum diplomacy still believed that India would cave, rather than take the rap for tanking the WTO negotiating round. Now the old school has been hoisted by their own petard. They do not realize that the distribution of global power and the vectors of legitimacy have changed since the Uruguay Round.
I'm not a true technical expert on the TFA-on which my sometime co-author Antonia Eliason has written masterfully-but it does not take much experience in treaty interpretation to understand the absurdity of inflating the July 31 deadline into a nuclear event for the WTO system. The clause in question merely states that the General Council is to meet by July 31 to adopt the TFA, and take related measures toward implementation. Its plain language does not require that the action itself be taken on that day but only a meeting for those purposes be convened by then, This is consistent with the date for acceptances of the TFA by individual WTO Members being a year from now. The fact that July 31 is only specified as a deadline by which a meeting is to occur with a view to certain actions rather than when the actions themselves must have been completed, is consistent with the fact that nothing in the TFA specifies any legal consequences in the event that the actions in question remain incomplete by July 31. The French text also makes clear that it is the meeting that is to be convened at the latest by July 31. Further, the deadline is not contained within the TFA itself (and that includes the 2015 deadline for acceptances).Extending the acceptances deadline would simply require a new ministerial decision, and does not require opening up the heavily negotiated text of the TFA, which is annexed to the ministerial decision.
In sum, the legal basis for declaring the TFA dead and the WTO in crisis is completely illusory-this is simply about punishing India for asserting the perceived interests of its people. We also need to put the events of the last weeks in context. India did not spring its concerns as a surprise at the Geneva meeting-it had been expressing worries about lack of progress on a permanent food security accord for some time. More generally, whatever deadlines, artificial or real, may exist, implementing the TFA is a complicated process, that will involve many stages and different speeds for different countries, often depending on the promised capacity building assistance coming through. The linkage to food security is not the only issue-there is also the question of how fast and how solidly the financing is being put into place. The WTO itself doesn't have much institutional capacity in this role; it isn't use to coordinating with bilateral and multilateral donors this kind of operation. The objectives of the TFA are meritorious; there is no legal or policy reason, not, in the words of Bob Dylan, to "keep on keepin' on."
