THE 'GREEN ROOM' GHOST COMES ALIVE

by Chakravarthi Raghavan

Geneva, 15 Nov 99 -- More criticism of the secretive and non-transparent, "Green Room" consultation processes of negotiations among a small group of countries, in the preparations of the Seattle meeting were again voiced at the informal heads of delegations (HOD) meeting of the General Council Saturday.

The informal HOD saw a wider swathe of developing countries voicing their discontent over the lack of any progress on the "implementation issues" -- proposals calling for decisions at Seattle and others to be addressed and resolved in year 2000 -- and the negative position of the two majors, the USA and the EC, on some key demands of developing countries.

Several of them warned that unless they get some satisfaction on these questions of rectifying the imbalances in the Marrakech Agreement and ensuring benefits to developing countries from the trading system, without being asked to pay a new price, they might be forced to withhold consensus for a ministerial declaration or the launch of any new round.

"We don't need a declaration, but a mere two-page paper of decision by ministers for the built-in agenda," Egypt and a few others reportedly said.

Some other developing countries indicated outside the meeting room that they foresaw the danger of the industrialized countries making some minor concessions under implementation at the last minute, and in return try to arm-twist developing countries to agree to a wide-ranging new multilateral round with new issues.

"We can't accept it, and we have to ensure that our Ministers stand firm, and refuse at Seattle to negotiate any of these details," one of them said.

On the non-transparent 'green room' process, on Nov 6, a group of countries had raised the issue at the informal HOD, and later that day had written formally to the WTO General Council (GC) Chair, Amb. Ali Mchumo of Tanzania, voicing their concerns and insisting that compromises reached at these small meetings not be integrated into any future draft Declaration, without first presenting the suggestions for changes and a brief note of the member explaining the context of the change to the informal HOD and for discussions there.

This letter, jointly signed by Bolivia, Cuba, Dominican Republic, El Salvador, Guatemala, Honduras, Mauritius, Panama, Paraguay and Uganda and supported by Djibouti, was sent to Mchumo, after Moore's explanations about the 'green room' process to an informal HOD meeting on 6 Nov, and the separate meetings on Nov 5 that Moore and Mchumo had with a number of delegations that had voiced their objections and complaints, earlier that week at the formal session of the Council.

All WTO meetings are held in private, and while there are some official and attributable briefings by the WTO press office for formal meetings, there are no attributable or formal briefings for informal meetings.

But word of the joint letter and copies of it became available unofficially from some delegation sources on Saturday (13 Nov) during the informal HOD.

On November 6, Director-General Mike Moore had suggested that he was holding the 'green room' consultations at the request of GC chair Mchumo.

In the current 'green-room' consultation process, there is no official word from the WTO on who is present and what subject is discussed. But there are a maximum of 20 delegations, with some constants, and others brought in depending on the subject, trade diplomats said.

The delegations present are said to be Canada, EC, Japan and the US (the four Quad members), Argentina, Brazil, Chile, Mexico, India, Egypt, Pakistan and the Dominican Republic, Australia, New Zealand, Switzerland, Korea, Hong Kong China, Singapore, and Malaysia (the ASEAN no longer appear to have a common position). Sometimes one or two others are called. Mchumo is said to have attended some of these meetings, particularly on implementation. Kenya was invited a couple of times, but subsequently the invitations stopped.

This complaint against the 'green room' process, which Moore had revived in the third week of October, has been voiced in formal General Council meetings of 3 November, without any response from the Chairman of the General Council or the WTO Director-General Mike Moore who has been holding these consultations and negotiations, without specific authorization from the General Council.

Moore, however, responded indirectly in a letter dated 4 Nov to the GC Chairman, and which was made available to the members on 5 Nov. He also discussed it with some 14 delegations on 5 Nov. Some remarks of Mchumo at the 6 Nov meeting, and those of Moore in his letter and the plurilateral meeting on 5 Nov, left the impression with some delegations that Moore had started the 'green process' at the instance of Mchumo, while others said Mchumo's remarks did not go as far as that.

But the issue again broke into the open at the 13 Nov informal HOD meeting. Originally intended by the Chair and the DG to be a short meeting of no more than an hour (starting 11 am local time and winding up by noon), the Saturday meeting went on for over 3 hours, and failed to provide the kind of authorization and legitimacy for springing a new revised draft text (prepared by the secretariat, and issued in the name of the GC chair) to be given to delegations on 16 November.

At the HOD, Moore spoke of a "multi-layered" process (presumably of restricted consultations by Moore and his officials and advisors) doing useful work at "experts level" on fisheries subsidies, TRIPS and electronic commerce, and of his "consulting very intensively" to facilitate agreement on implementation. But Moore's text (circulated to delegations and became available to media) made no reference to his 'green room' process on a wide range of new issues put forward by the EC, US and Japan, as well as questions like those relating to 'single undertaking' (and commitment at Seattle for all the agreements to be accepted as a package), or the coherence package to make the WTO the overall international economic 'governance' instrument etc.

Mchumo, in opening the informal HOD (and with speaking notes circulated to delegations) said members have agreed that the process in the final phase having to be conducted on several broad fronts, but that work 'in other fora' to be conducted in all transparency and non-discrimination, of his own open-ended consultations on an action plan for LDCs and technical cooperation, and of the DG conducting at Mchumo's request consultations on "implementation", of 'technical level' discussions on services, TRIPS and technical barriers to trade.

Mchumo's remarks did not make any mention of Moore's "green room" consultations on the other subjects he had not mentioned, nor indicate how and where the authorization came from, beyond his general statement about the "process in the final phase must be conducted on several broad fronts."

Judged by the letter of the 14 delegations, and renewal of complaints by several other participants at the informal HOD, the remarks of Mchumo and Moore do not seem to have met the objections about the non-transparent and discriminatory consultations.

And neither Moore nor Mchumo in any of their presentations and texts made available to the membership (and unofficially to the media) have ever said that the "green room" process by Moore on a wide range of issues being sought to be included in the "Seattle agenda" by Moore had been specifically authorized by the General Council or even mentioned and taken as having implicit approval.

Nevertheless, on Saturday (13 Nov), the US representative, Amb. Rita Hayes, in her intervention reportedly claimed that the process had been authorized and Mchumo had said so in July that such consultations would be held and the Moore process was thus authorized. It was not clear from the information coming out of the informal HOD and reports of what Hayes said, whether she had mentioned any particular meeting of July (a month where the main preoccupation of members was how to solve the WTO DG tangle).

On July 8, by when the General Council had received a large number of proposals for Seattle, a series of informals were set for what was called "focused" discussions. It was then said that at the end of July, with all the proposals in and after the informals, delegations would have time to reflect in their capitals and come back to begin the serious business of starting a drafting exercise.

In September, Mchumo issued an 'elements' text and the developing countries in the Like-Minded Group (LMG) put forward their own views on the elements. After discussions, Mchumo put forward a draft declaration, and later (after representations from developing countries) included an addendum of the LMG text on implementation.

A new revised text was issued on 20 October, containing implementation issues, built-in agenda (agriculture and services, mainly), the Singapore Ministerial Conference issues (as subjects for negotiations) and separately for continuing the study, and a whole bunch of Geneva Ministerial Conference ones, and others proposed by delegations (and some like coherence advanced by the secretariat).

Following the death of Julius Nyerere, when Mchumo became unavailable for the informal HOD, Moore took over, and launched the 'green room' process, in parallel.

Mchumo who resumed the informal HOD early in November, according to trade diplomats, wound up every meeting, with the remark that members should continue their bilateral and plurilateral discussions, but with no specific mention or implied authorization of the 'green room' process.

Since about January, when proposals for Seattle were being discussed, a common refrain was that it is a "member-driven process."

Throughout July, as over the earlier months, the major preoccupation and focus at the WTO was over the election of a DG, which was resolved only on 22 July, with Moore coming to Geneva to sign a contract by end July, and taking over from 1 September.

Until then, from 1 May (when Renato Ruggiero and his deputies demitted office) there was only a Director-in-charge of the secretariat. Given the state of relations over the election process within the GC, among members and of the members with the chair and with the secretariat, since about end March, it is difficult to believe that a "green room" or "green room-type" process on the substantive issues would have just nodded its way through.

Nevertheless, Hayes was reported as having said on 13 Nov, that the restricted consultative process had been authorized by the GC.

Some of the major developing countries fighting more substantive issues for Seattle said they did not want to be distracted into this procedural, though important, question of  the 'green room'.

Trade officials have tried to play down, with a kind of shrugging of shoulders, the openly voiced protests over the 'green room' process. Moore, in his communication of 4-5 November to the General Council chair, and remarks at the informal HOD of 6 November has sought to explain the process and by implication claim legitimacy. Some delegations present at the consultations privately argue that the GATT has always functioned in the past on the basis of such consultations on difficult issues, since negotiations could not be held in open-ended meetings, and that this is inevitable, and helps the decision-making process.

In his chapter in a book, Essays in honour of Arthur Dunkel (1998). Mr. Rubens Ricupero, who had come to Geneva (as the Brazilian Ambassador to GATT and the UNOG) in November 1987 and remained till August 1991, talks of his perception of the North- South dimensions of the GATT negotiations and says: "... this was the perception I had, shortly after my arrival in Geneva in November 1987, at my first 'Green Room' meeting, a peculiar consultative process by which the GATT Director-General gathered together some twenty delegations in order to adopt decisions that would be validated by others. It was a frightening experience for a new comer, alone without advisors, in an almost English Club atmosphere, when everyone addressed the others by their first name..." (emphasis added).

However, trade observers and analysts familiar with GATT practices over a 20-year span note that while such 'small' consultations did take place in the past on difficult issues, those participating had some representative capacities, and made known to their constituencies the discussions and outcome.

Also, the practices and methods of functioning when the GATT was an executive agreement among governments, with a much smaller membership, and whose remit was confined to trade in goods across frontiers, could not be a precedent in these matters in a WTO of about 135 members, whose many domestic economic policies and decisions are liable to be interfered with by the WTO rules, in existing and in new areas and sectors sought to be extended.

Mr. Bhagirath Lal Das, who was India's representative to the GATT (1980-1983), and before that a senior official in New Delhi dealing with textiles (and thus involved in the MFA negotiations at the GATT), talking to the SUNS, gave a different perspective.

In the old GATT of the late 1970s and early 1980s, he said, there was the Consultative Group of 18 (CG-18), a formal body of 18 members 'elected' annually by the Contracting Parties.

The CG-18 was a consultative body which met from time to time to discuss issues, and at the end of the discussions agreed on a communique which was then issued to the press, with occasionally a press conference (whether by the GATT DG and/or the members) which did not expand beyond the communique.

There was an informal "7+7 group" with a developed and developing country (North-South) balance, and this was convened from time to time, either by the chair of the GATT council or by the GATT Director-General, to hold discussions on some knotty questions.

The 7+7 had, as more or less permanent members, the industrialized world represented by the US, Canada, Japan, the European Economic Community (EEC) as it then was, Australia or New Zealand, Switzerland and one Nordic country. From the developing countries, there was Brazil, Egypt, India, one representative from the ASEAN (usually their rotating coordinating country), Hungary (from the socialist group), the chairman of the GATT Council and the Chairman of the GATT Contracting Parties. By tradition, the office of the GATT Council chair rotated between a developed and a developing country, and the Chair of the Council in one year became the Chair of the CPS, which met only annually, and rarely in special meetings. Together the Council and CPs chair, provided a balance.

On some issues where other countries not in the 7+7 had an important interest, they would also be invited to attend and participate, Das said.

The 7+7, Das recalls, was a misnomer, in that the then EEC would come to these meetings with the EC Commission and its member-states (about 8 or 9 to begin with, and later expanding). The EEC members present would not speak (since the EEC spoke and negotiated for them in the old GATT), and often it appeared the member-states were there more to keep a watch on the EEC representative than anything else. But even this "overwhelming" presence of the EEC and thus of developed world led to protests, and ultimately resulted in the EEC representative and the country of the chairman of the EEC Council of Ministers being present in these consultations.

And while the consultation was an animal, Das said, the developing countries present at the 'green room' consultations would invariably meet with the other developing countries in the informal group of developing countries, which either met every month or on important occasion met specially for the purpose, and fully brief the other developing countries. The informal group of developing countries (which included in those days Israel, Greece, Turkey and Spain) at that time did have much greater commonality of interests, and functioned regularly and more effectively than now.

These consultation processes were used in the difficult negotiations for renewal of the Multifibre Agreement (MFA), and became a "green room" meeting in the processes leading to the 1982 ministerial, Das recalls.

SUNS reports of those days show that the preparatory process for the 1982 ministerial got into considerable difficulties and problems, and the process of drafting a ministerial declaration, led by the Canadian chairman of the Prepcom for the 1982 ministerial, had many more square brackets, and square brackets within square-brackets than the current ministerial draft. Ultimately, after the prepcom had 'reported' to the Council, the Council chair (then Mr. Das) was asked to take over the job of consulting and coming up with a cleaner text.

And there were 'green room' consultations (of the 7+7 mainly) convened by Das or Dunkel, Das recalls.

At the 1982 ministerial meeting itself, finding the going difficult, the Canadian Minister chairing that meeting, convened some "consultations" of some ministers present, overwhelmingly from the industrial world and a few from the developing countries, and these were held in a luxury hotel in Geneva, away from the ministerial conference centre or the GATT premises. Some of the ministers were not even allowed or encouraged to bring their GATT diplomats.

But when some of the ministers found they had 'agreed' to things not in their interest, and contrary to the briefs and instructions from capitals, they left Geneva, after instructing their officials to say 'no' in further consultations at the conference.

Thereafter, in the stage of preparations for Punta del Este (late 1985 and 1986), the 'green room' process, mainly by the DG, became a more difficult process, and was used often by the majors "to stare down" and coerce one or two developing countries holding out.

Gradually, those within the developing countries who were more supportive of the North were added to the 'green room', and those opposing were made to feel isolated, and pressured to compromise.

At the Montreal mid-term review process, when the fate of the agricultural issue was being decided in a 'green room', with the US agreeing to put aside for the moment the differences with the EC, Chile which felt it had a vital stake, went to the meeting room and wanted to go in. A GATT aide, with a list of names in his hand, told Chile that it was not invited, and the name was not on the list. Chile created a scene, and Dunkel's chief de cabinet, Mr. Arif Hussain, came out to persuade Chile to leave, and come and meet Dunkel separately. But Chile refused, and found itself in the 'green room'. And gradually, there were more Latin American and other Asians being called in, and a few Africans.

Since then, the original 7+7 concept has given way to the tendency to bring in all those individuals or countries likely to say 'no' and be troublesome (not because of substantive interest in the issue, but because they were excluded) to 'validate' decisions reached in the 'green room'. As a result, the presence in the 'Green Room' varied. And after Mr. Ricupero left Geneva and the chairmanship of the informal group in 1991, the informal group met less and less frequently, and less of a force in the GATT processes, and with some of the successors using or being used to promote the GATT/WTO power structure views.

The 'green room' process was not used by Sutherland, with the US and EC holding direct bilateral talks and striking deals, and organising with others (Canada, Hong Kong etc) some meetings outside on some subjects, producing the 'decisions' and 'texts' which was given to Sutherland who presented them to the informal HOD meetings. Sutherland's successor, Mr. Ruggiero revived the 'green room', but only to give up the process by 1997-98, when he found that the process had become synonymous with WTO's 'secretive and undemocratic' decision making, and evoking a growing hostility to the WTO among the wider public.

In their 6 November 1999 letter to the Chairman of the General Council, the 11 signatory delegations said that after their meeting with Mchumo and Moore on 5 November, and Moore's report to the informal HOD on 6 Nov, they wished to reiterate their concern "regarding transparency in the organization of preparations" for Seattle.

"We believe this is not just one more concern among others, but rather an issue central to the goal of integrating all Members meaningfully into the work of the Organization."

"We have been unhappy," said the signatories in the letter to Mchumo, "about the manner in which relatively small groups are convened for substantive discussions with yourself or the Director-General, on specific questions of the draft Ministerial Declaration - the so-called 'green-room' meetings. We believe the shortage of information and reporting to Members regarding these meetings, both before and after their occurrence, leads to unnecessary divisiveness and rancour. The process of invitation to the small meetings is also highly unsatisfactory. The interested delegations themselves must decide if they have enough interest at stake in a topic to participate in the small-group discussions, or even be informed that the meeting will take, or has taken place.

"We all recognize the importance of small-group meetings. They may advance compromise, help smooth differences between Members, and significantly further the work of drafting the Ministerial Declaration. It is precisely on account of the importance of these meetings that we must devise a way in which, if a few delegations are invited to discuss a topic, all delegations with an expressed interest in the topic must be able to participate effectively in the process, ideally in the same session. If group size is seen as a barrier to a dynamic and evolving discussion, several small meetings, round-robin style, will be required. Efficiency may suffer. Arbitrary exclusion in discussion, however is not an option.

"We suggest also that no compromise reached in the small-group meetings can be integrated into any future draft Declaration without first presenting drafting suggestions before the entire Membership. The draft language incorporating the compromise can be accompanied by a brief note from one of the delegations advancing the compromise, explaining the context in which it was arrived, and the major concerns addressed. This note of course, would not under any circumstances be considered binding on any delegation. On this basis, all Members may be provided an opportunity to express, in an informed manner, their concern, suggestions, rejection, or simply request instructions, before (emphasis in original) the arrangement may be incorporated, upon by agreement by Members, into the draft declaration.

"An additional concern is that the small-group meetings may take place concurrently with the on-going heads of delegation meeting.

This raises the question of which meeting is the more important, and which is the forum in which decisions are taken. To counter this, we suggest that, if a small group is to meet concurrently with a meeting of heads of delegation, that the small group not consider any topic being discussed at the principal meeting. The cardinal rule in this drafting process is that the General Council, not a small group, must arrive at consensus based, member-driven decisions. Any appearance that this is not occurring must be immediately corrected.

"Implementing our suggestions will not address all our concerns, particularly if individual delegations cannot feel they are invited or welcome to participate in small-group meetings. Implementing our suggestions would however, represent a significant step towards relieving our current concerns regarding internal transparency at the WTO." (SUNS4552)

The above article first appeared in the South-North Development Monitor (SUNS) of which Chakravarthi Raghavan is the Chief Editor.

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