Chairpersons abuse their powers in WTO talks

As multilateral trade talks reach a crucial stage ahead of the WTO Ministerial Conference in September, the chairpersons of the various negotiating groups, and not the member delegations, are taking control of the process of formulating negotiating texts. Aileen Kwa flags the dangers to developing-country members of this “chair-driven” approach.

GENEVA: “Members can say whatever they want (in WTO meetings), but ultimately, what is decided is what the chair says the meeting has decided,” a developing-country negotiator recently commented at a meeting with some NGOs.

Since Doha, chairpersons in the WTO have modelled their work ala the action of Mr. Stuart Harbinson, the then Chairman of the General Council who, without any authority from the Council, sent off a draft declaration “on his own responsibility” to the Ministerial Conference in Doha and introduced it at the opening ceremonial meeting chaired by the Emir of Qatar where delegates could not object, thus bringing it onto the agenda of the Ministerial Conference.

This stunt before Doha destroyed the last shreds of democratic credentials that the WTO had at that time. The draft declaration had been opposed by the majority of the membership. However, Harbinson disregarded the principle of WTO decision-making by consensus, did not include differing viewpoints on contentious issues (as had been demanded at the General Council by several delegations and as is the normal practice) and totally sidelined developing-country objections to the text, even those objections which had been expressed in the strongest of terms.

The then Director-General of the WTO, Mr. Mike Moore, also had a hand in this, but the responsibility lay with the Chairman of the General Council, whose role as chair is to present the views of the members where there is a consensus decision, or outline differing views.

In the eyes of many developed-country governments (and a handful of developing countries), the final result of Doha, very similar to the text Harbinson had submitted, was a major success. Another Seattle had been averted. Developing-country Ministers, under intense pressures, had capitulated. The pressures of liberalization and deregulation, so forcefully backed by the corporate giants, were once again put on the developing world, supposedly for their own good.

“Clean texts”

Since Doha, all chairs of negotiating bodies have adopted Harbinson’s style. Reports and negotiating texts have been put forward “on his/her own responsibility” and have not reflected divergent views. Instead, these have been clean texts giving the chairperson’s views of what the outcome of the negotiations should be or what “in the chair’s judgment” could be a compromise position. The problem is that chairs tend to reflect more the positions of the politically and economically stronger members in the WTO. Whether a member’s position is reflected in the text finally boils down to its political clout. Wasn’t this what multilateralism was supposed to protect the weak from?

On 18 July, the Chair of the General Council, Uruguay Ambassador Carlos Perez del Castillo, circulated a skeletal draft Ministerial text for the Fifth Ministerial to be held in Cancun in September. There are several problems with this text and procedure.

The draft still does not include many details on most of the contentious issues on the WTO’s agenda, for example TRIPS and public health, agriculture and the decision on the Singapore issues. The exclusion of the really contentious issues is highly problematic given the fact that there is only one month to go before Cancun. The WTO will be closed for summer recess in the last week of July and first week of August. Developing-country negotiators know that there are drafts being circulated, for instance, on the Singapore issues, but these drafts have not been shared with them thus far.

Negotiators are very apprehensive that these drafts on contentious issues will only be pulled out of the closet at a very late stage (e.g., late August) and that there will not be sufficient time to take into account their views. Will the chair then submit a clean text which excludes their views? What will then happen in the Ministerial? Even the biggest developing countries such as India seem to feel that they are unable to control the process in Ministerials.

The skeletal draft text was circulated to members on the chair’s “own responsibility.” This clearly raises the question: is the Chair of the General Council intending to repeat the Harbinson process and also submit to Cancun a draft “on his own responsibility”, a draft that does not have consensus and ignores the views of the majority? All indications to date seem to point in this direction.

The issue of the exact role of chairpersons in the WTO was heatedly fought over right after the Doha Ministerial.  In January 2002, developing-country members, still searing from their Doha experience where their Ministers came under tremendous pressures to endorse positions they would have preferred not to, wanted to institute some clear rules of procedure that would limit the powers of chairs and avoid their abuse of their positions in the way Harbinson had done.

In a very telling statement which revealed the depth of unhappiness, even anger, which many negotiators felt about the Doha process and its complete disregard of proper procedures in those negotiations, the African Group, at the first meeting of the Trade Negotiations Committee (TNC) in January 2002, said: “The African Group ... (remain convinced and maintain their position) ... for example, that any Chairperson should not submit on his own authority a negotiating text to a higher body. In the event that there was no consensus regarding the text, then any divergent positions of delegations should be clearly reflected.”

These same views were also voiced by the Like-Minded Group (LMG) of developing countries at that time (Cuba, Dominican Republic, Honduras, India, Indonesia, Jamaica, Kenya, Malaysia, Pakistan, Sri Lanka, Tanzania, Uganda and Zimbabwe). The LMG submitted its position paper on the role of chairs and the negotiating process. In it, the LMG said:

“The Chairperson of the negotiating groups shall only submit negotiating texts which have the consensus of the group and not texts prepared on his own authority .... Reports and draft decisions of the negotiating groups to be sent up to higher bodies should be agreed upon in the concerned negotiating body by consensus. In case there is no consensus on any issue, differing views of members, with alternate suggestions for decision, should be reflected in the drafts to be sent up to higher bodies for decision.”

Most developing-country delegations are not in favour of commencing new negotiations on the Singapore issues. The African Group in their Ministerial meeting in Mauritius (20 June) adopted this position, as did Ministers of least developed countries in Bangladesh several weeks ago. Given that this is the dominant view of the membership, and if the WTO were representative of the views of members, there should be no doubts about the outcome of these issues in Cancun.

The fact that this is not the case currently (negotiators find it hard to predict the outcome) is testimony to the undemocratic processes, the current practice of chairs overstepping their powers, and the clear fact that the institution has not been responding to the will of the majority but the views of the politically strong.

One negotiator related a meeting which took place on 8 July on trade facilitation. It was yet another informal “heads of delegation” meeting where all are invited but only some can attend since the proliferation of such meetings in recent weeks has made it impossible for resource-stretched delegations to be physically present in all of them.

At that meeting, Mr Milan Hovarka, the Czech Republic Ambassador facilitating the discussions on trade facilitation, concluded that, from the way discussions are going, in his judgment, consensus on agreement to launch negotiations on trade facilitation is just round the corner.

He was clearly disregarding the fact that just two weeks before, African Union Trade Ministers had jointly declared, on the subject of the Singapore issues - of which trade facilitation was one - that “Taking into account the potential serious implications of these issues on our economies, we call for the process of clarification to be continued.”

Following such a preposterous statement from the chair, the representative of Pakistan raised his flag and commented that developing countries have many problems with agreeing to binding rules on trade facilitation and have been very vocal about this in the consultations. He did not see how the chair could give a factual report without capturing these views.

The EC representative immediately countered Pakistan. He said that Pakistan was misrepresenting the developing countries. There are many developing countries which are ready to take on rules. As he was speaking, the representative of Costa Rica raised its flag and the EC spokesperson immediately added that he could see Costa Rica raising its flag to support his view.

An Indian delegate intervened at that point and said that India agreed with Pakistan’s assessment of the situation, and that a large number of developing countries were not ready for binding rules on this issue.

Immediately after this exchange, the chair closed the meeting, citing reasons of insufficient time!

This and other stories have been proliferating in the run-up to Cancun. One delegate, disgusted by the current state of affairs, said on condition of non-attribution, “This is supposed to be a member-driven organization. But chairs are reporting ‘on their own responsibility’. This should stop because the chairpersons are just dictating issues. They think they can write what they want because it is ‘on their own responsibility’, but these reports later become binding on us. When they prepare reports, it should be based on discussions that are taking place. But now, they are giving their personal views. This is unacceptable.”

Another delegate said that in the heated negotiations in early 2002 (nominating the WTO Director-General as the Chair of the TNC), developing countries obtained some procedural guidelines. Though it still falls short of what they wanted, one of the “principles and practices” the TNC adopted was: “in their regular reporting to overseeing bodies, Chairpersons should reflect consensus, or where this is not possible, different positions on issues.”

The delegate said his country would use this article to pin down chairpersons if they attempt to overstep their powers and submit a non-consensus document to the Cancun Ministerial.

Informal mode

The other major problem with the current process is that the preparatory meetings for Cancun are mainly taking place at informal heads-of-delegation (HODs) meetings. The WTO does not keep records of any of the informal meetings, not even of who did and did not attend.

The reason given by the developed countries is that formal, recorded meetings are not conducive for frank and open discussions.

There are, however, some political implications for developing-country members if this informal mode of talks continues. If chairs continue their tactics such as putting forward clean texts which do not represent many countries’ positions, minutes of meetings help the politically weaker at a later stage to point to and justify their inability to accept these chairpersons’ texts.

This is very important when the Ministerial is approaching and the blame game is increasing; developing countries are blamed  if they stall the chairman’s texts or continue insisting on positions that are not  “helping the negotiations move forward.” Negotiators here in Geneva (and their Ministers in Cancun) are or will be branded as “not being constructive,” and records, if maintained, will enable them to counter these tactics.

Records also guard against outright lies or misinformation that is often used in this game, particularly when developed-country negotiators meet with their developing-country counterparts. For example, EC Trade Commissioner Pascal Lamy or US Trade Representative Robert Zoellick may tell developing-country Ministers that there is little disagreement on a certain issue (e.g., trade facilitation) when in fact, concerns and outright disagreement may have been expressed in informal, unrecorded meetings in Geneva.

Even as developed countries load up the Cancun agenda (e.g., they are insisting on starting negotiations in new areas - investment, competition, etc. - which developing countries do not want), the blame will be shifted to developing countries should they stand firm in their refusal.

A smear campaign, using the WTO-friendly media, will be waged against countries that want to preserve their own national policy space, as was done to India in Doha. They will be painted as ‘enemies’ for threatening the collapse of the multilateral trading system. No developing-country Minister would relish having such strong accusations pointed at him/her by major trading partners.

But is a Seattle II scenario in fact negative for the world? The developing world is right now being forced to liberalize and deregulate, even when their local enterprises cannot compete with the transnational giants. Surely the collapse of their local industries (as has already been taking place) cannot be good for their development?

On the face of it, the WTO is rules-based and democratic. But in reality, it is putting in place rules that are skewed against developing-country interests and that are rammed through only with the most illegitimate tactics of outright exclusion, coupled with backroom bullying and blackmail (aid and loans would be withdrawn or denied). (SUNS5391)

Aileen Kwa is a policy analyst with Focus on the Global South, a Bangkok-based policy and activist institute. She is currently based in Geneva.