The Region 10 chairman and his team should be congratulated for successfully completing the recent negotiations with the government. However, I want to focus on one aspect of that negotiation process that may hold some lessons as we irrevocably eschew bullyism and commit to persistently seeking negotiated outcomes.
The chairman was reported (Demerara Waves: “Signing of Govt- Region 10 agreement aborted:” 20/08/2012) as stating that the recent negotiations proceeded according to what he defined as “Rohee’s law:” “nothing is agreed until all is agreed.” Of course, this is not “Rohee’s law” but the major element of the principle known as the “single undertaking” that is mainly applied to complicated international trade negotiations. However, in ordinary negotiations “nothing is agreed until all is agreed” usually appears sensible and fair and thus there is a tendency for participants to quickly accept it. However, as we shall see below, neither it nor the general principle contains any inherent morality or wisdom.
Countries involved in the present Doha Round of trade negotiations have promised that “the conduct, conclusion and entry into force of the outcome of the negotiations shall be treated as parts of a single undertaking” (para 47, WTO, 2001). However, the principle has existed since long before Doha and in a nutshell what it means is that all sectors of the negotiation would proceed in parallel, that nothing is agreed until everything and everybody is agreed, and that the new rules will enter into force for all parties at the same time.
In “Arguing and bargaining in the WTO: Does the Single Undertaking make a difference?”, Robert Wolfe claimed that the single undertaking: “…. can be understood by analogy to the “acquis communautaire”, the body of accumulated legislation and regulations of the European Union that is not subject to negotiation in the process of accession for new member states. The WTO acquis includes all the WTO Agreements as interpreted by Committees and the dispute settlement system.”
Although some believe that it was the US which first sought to introduce the principle to ensure that all signatories to world trade agreements make similar undertakings, it is now widely believed that the single undertaking helped to address the long-standing problem of some countries “free-riding” on the trade liberalization of others and allows for trade-offs across disparate issues.
For example, developed countries have made concessions on textiles and apparel trade while developing countries have made concessions on trade-related aspects of intellectual property rights and so on.
However, the single undertaking also has many critics, who argue that it is largely responsible for the length of time trade rounds take to complete since “all” must, at least in theory, agree. The principle is also criticized as contributing to trade negotiations and agreements being too complicated, burdensome and unfair, particularly for developing countries.
It took six years to complete the Tokyo Round and fifteen years to bring the Uruguay Round to a successful end and the present Doha Round, which began in 2001, is so comatose that some have pronounced it dead. In his 1998 address to WTO ministers, President Clinton covered many of the concerns when he suggested that: “We should explore what new type of trade negotiating round is best suited to the new economy. … We should do this in a way that is fair and balanced, that takes into account the needs of nations large and small, rich and poor. But I am confident we can go about the task of negotiating trade agreements in a way that is faster and better than today.”
To deal with some of the above concerns, the single undertaking has had to co-exist with regimes established to allow for greater flexibilities. For example, a special and differential treatment regime was introduced to partly allay some of the fears of developing countries. Further, the “Warwick Commission on the Multilateral Trade Regime” recommended that serious consideration be given to the re-introduction of the flexibility associated with critical mass decision-making as an additional element of “variable geometry” in international trade.
Plurilateral agreements between only developed countries, on such issues as finance and telecommunications services, are examples of other flexibilities.
Thus, the single undertaking is intended for extremely large and complicated negotiations consisting of thousands of items across which trade-off must be allowed if an equitable outcome is to be possible. If participants, particularly important ones, believe that the likely outcome would be against their interest, agreement would not be possible, which largely explains the length of time trade rounds take to complete.
In the case of Linden, it was the regime that needed the single undertaking and although it was raised in the press by the chairman, I am all but certain that it was the government that placed it on the table.
There were half a dozen main issues and little need for trade-offs between them. The Linden negotiators had only one thing the regime wanted and that was a return to normalcy. Therefore the government wanted the single undertaking to tie all of their apparent concessions to this factor. Thus by “nothing is agreed until all is agreed,” the government was saying that it reserved the right to backtrack on any previously agreed issue if there was no agreement on a return to normalcy.
The chairman recognised the government’s “infamous track record on implementing agreements” and in such conditions one could discard the single undertaking and insist on item by item “good faith” agreement initial implementation, particularly since, outside of one item, the suspension of the new electricity rates, the regime was only conceding what it had previously agreed upon, (in 2003 former president Jagdeo and Mr. Corbin agreed to develop “a comprehensive development programme” for Region 10) or had been, in the case of the items on the international enquiry into the killings and broadcasting, demanded by national and international law and practice.
The notion that nothing should be agree until all is agreed has no essential moral standing; it is a convenient tool depending on the circumstances and should be negotiated on a case by case basis as part of the procedural aspect of a negotiation.
