Developing countries call for principles and procedures for WTO Ministerial Conferences

In a bid to end the kind of procedural fiasco and manipulation that characterised the Doha Ministerial, 15 developing countries have recently called upon the WTO General Council to agree on basic principles and procedures to govern the conduct of future WTO Ministerial Conferences, including the preparatory process to such Ministerials. Ironically enough, the response to this move from developed nations (all doughty defenders of the one-size-fits-all rules of the rules-based WTO) has been to suggest that there can be no one-size-fits-all procedure for WTO Ministerials and that the procedure should remain flexible.

Chakravarthi Raghavan

THE General Council of the World Trade Organisation has been asked by a group of developing countries, members of the Like-Minded Group (LMG), to agree on basic principles and procedures to govern the preparatory process and the conduct of the Ministerial Conferences of the WTO, so as to ensure that they are transparent, inclusive and predictable.

The proposed principles and procedures will end the kind of shenanigans and abuse of procedures staged at the 4th Ministerial Conference held in Doha last year. That conference started with the adoption of its agenda at the ceremonial opening session, saw the use of named and unnamed facilitators to create an artificial consensus on the Ministerial Declaration and work programme, and ended with consultations among a small number of invited delegations (the so-called Green Room meeting), in which the ministers present were asked to agree to formulations and drafts on new issues that were only brought up there at the last moment.

The LMG proposal, in the form of a communication, was tabled by India on behalf of Cuba, the Dominican Republic, Egypt, Honduras, India, Indonesia, Jamaica, Kenya, Malaysia, Mauritius, Pakistan, Sri Lanka, Tanzania, Uganda and Zimbabwe.

The LMG members have suggested that Ministerial Conferences should be held in Geneva (where the WTO is headquartered) rather than in other countries, which increases the costs for members of participation, apart from the inconveniences caused. The WTO membership, it is proposed, should also review the evolving tendency of holding the Ministerial Conference with a primary focus on launching or reviewing negotiations.

The proposed principles and procedures are so basic to any intergovernmental and international organisation that the very fact that delegations have now to formally propose putting these into place is perhaps the best commentary on the state of the WTO.

Doha debacle

In the run-up to the Doha conference, the then Chairman of the General Council Stuart Harbinson of Hong Kong China and the WTO Director-General Mike Moore had announced that they would send their drafts of the Ministerial Declaration and other drafts (for the consideration of and adoption by ministers at the conference) directly to the Ministerial Conference, and claimed they could do so under their own authority.

At a press briefing, when asked to cite the particular rule of the rules-based WTO that provided such an authority, the WTOs chief spokesman Keith Rockwell could not cite any rule, but had said that the WTO secretariats research showed there was a degree of inconsistency in the procedures about the right of the Chair and the Director-General to act thus and that flexibility was the watchword.

At Doha itself, at the ceremonial opening session, when the Emir of Qatar was in the Chair opening the conference, the conference agenda was placed before the session and declared adopted (at the time of adoption, several delegations said they had not even been provided with a copy of the draft agenda), and Harbinson and Moore were also enabled to table their drafts. The ceremonial nature of the meeting made it impossible for any of the delegates to challenge the Emir, as the head of the host country, and the procedure.

Later at the first plenary meeting of heads of delegation, when India and other ministers raised their flags to challenge the procedures adopted, the chair of the conference, the Trade Minister of Qatar, whose attention was drawn by Moore (sitting by his side) to the ministers wishing to be recognised, replied, We don’t give them the time.

General Council discussions

The WTO General Council at formal plenary sessions (that are still closed to the media and outsiders) discussed on 13-14 May the proposals from the 15 developing-country members of the Like-Minded Group for agreed procedures so that both the preparatory process and the conduct of Ministerial Conferences are transparent, inclusive and predictable.

The proposals got praise from almost everyone (except perhaps for some nitpicking and acerbic criticism from Singapore and more polite opposition from Korea, Costa Rica and Chile), but with reservations which touched on the need for flexibility, and some self-serving statements justifying what had been done in the preparations for and at the Doha Ministerial Conference itself, including a speech by the then Chair of the General Council, Stuart Harbinson of Hong Kong China, that the final outcome declaration of the Ministerial legitimised and justified the means adopted by Harbinson and the WTO Director-General Mike Moore in formulating and sending documents to Doha without the authority of the Council but on their own personal responsibility.

Singapore, which for some time now has found itself at odds with other members of the Association of South-East Asian Nations (ASEAN), argued that the proposals would mean that the accredited delegations and ambassadors to the WTO were trying to constrict the flexibility of ministers. India somewhat politely replied that the proposals represented the views of their ministers and had been decided by ministers.

Fellow ASEAN member Indonesia (which, along with another ASEAN member Malaysia, was a co-sponsor of the LMG paper), in a response to the calls for flexibility in procedures, pointed to the irony of the WTO rules being largely rigid. Indonesia said the Ministerial Conferences are where the rules are made, and if there was too much flexibility in the process leading to rule-making, the results may not benefit the smaller economies, and the flexibility would lead to uncertainty and defeat the larger objectives.

On 13 May, the WTOs spokesman Keith Rockwell, in a on-record briefing, played down the proposals and discussions, even making it appear (by quoting out of context from a speech by India in introducing the proposals) that India had praised the process for Doha, and implied that the item too was destined like other items (e.g., Iran accession, the US Jones Act waiver, or problem of observers at the WTO) that appear on the General Council agenda but are talked of and then killed off in consultations.

However, on 14 May at a press briefing, the Chair of the General Council, Canadian Ambassador Sergio Marchi, said the paper introduced by India had made a very helpful contribution to the whole issue of internal transparency, that it would be listed on the agenda for the next General Council in July (when others would be able to present their own views and proposals) and that in the light of these he would hold consultations.

In response to questions about the detailed criticism in the LMG paper of the process leading to and at Doha itself, Marchi argued that the process had been fair and that he judged Doha to be a success (and presumably justifying the process).

Neither Marchi, nor those who were justifying the process before and at Doha on the basis of the resulting declaration and work programme for negotiations, have shown some awareness that apart from the difficulties that even major entities now face in the light of the state of the world economy (the prospects of low-growth scenarios over the medium term and the protectionism unleashed), the process by which the WTO negotiations have been forced and launched has itself created an environment in many countries where the negotiators and governments are being challenged and the outcomes of the negotiations would not gain easy acceptance or implementation, and that opponents in business and civil society are gearing up to challenge their legitimacy by pointing to these very processes.

On the proposal in the LMG communication that the WTO Director-General and secretariat should remain impartial and neutral on the specific issues being discussed (which implies that they have not behaved so hitherto), Marchi  made the claim that the Director-General was appointed and paid such high salaries to promote liberalisation.

However, the Marrakesh Agreement Establishing the WTO, in Article VI which lays out the role of the secretariat, gives the DG only the role of administering and running the secretariat.

At the time the Agreement was negotiated in November-December 1993, without a single exception, the key countries negotiating the text declined to heed the plea of the then Director-General (Peter Sutherland, who appeared before them twice) for a role for the DG similar to that of heads of other international organisations to put forward proposals, etc. The negotiators made clear that they did not want the DG to have any such role, but that he and the secretariat should only carry out the tasks asked of them by the members (collectively at formal meetings) and that they shall not seek or accept instructions from any government or any other authority external to the WTO (Art. VI.4 of the Marrakesh Agreement). There is no reference to the DG or the secretariat promoting or carrying out the objectives of the Marrakesh Agreement.

However, the WTO and its senior officials have repeatedly shown that they act for the majors with impunity and that they themselves need follow no rules in the rules-based organisation.

It is of course possible that the consultations by Marchi on the LMG paper may lead to the same fate foretold by Rockwell at the on-the-record briefing on 13 May. However, a number of proponents and their supporters have indicated that the LMG proposals had not come from the top of the hats of envoys here, but had been well-considered in their capitals and by ministers in the aftermath of Doha and had been formulated and put forward to ensure that the experiences of Doha are not repeated.

In other decisions, the General Council agreed to the suggestions of the designated host country, Mexico, and set the dates for the 5th Ministerial Conference for 10-14 September 2003 and the venue at Cancun.

Marchi said that, having taken care of the plumbing for the conference - the TNC and its structures and the dates and venue for the next conference - they should now address the poetry, namely the substance of the negotiations.

Transparency and inclusiveness

On 13 May, in introducing the LMG proposals/communication, Indian ambassador K M Chandrasekhar recalled the post-Seattle General Council meeting in February 2000, where internal transparency and effective participation of members was identified as one of the priority issues for consultations among members. Chandrasekhar referred to the interim report, after the consultations, of the then General Council Chair, Amb. Kare Bryn of Norway, and the views of Mexico that smaller group consultations could never pretend to be reaching a consensus, and the views of Jamaica and Uganda that inclusion of members in such consultations must be a matter of choice for each delegation (and not one for the DG or the chairs of WTO bodies, whether at Geneva or as happened at Doha).

The Indian statement (a text of which was made available to the media after the WTO briefing on 13 May) also noted Bryns statement to the Council in December 2000 and that a strong, inclusive and transparent process leading up to and including Ministerial Conferences is fundamental in order to ensure a successful outcome, and added: Since the consultation in 2000, we have had the benefit of our experience at Doha and in the run-up to it.

The Indian envoy added that the preparatory process for the Doha Ministerial Conference was in many ways marked by transparency and inclusiveness, but there were aspects of the process with which many developing countries were not comfortable. These, he pointed out, had been articulated in the various meetings before Doha. The consultation process at Doha, while transparent, however fell short on the question of transparency and inclusiveness at crucial phases.

Many developing countries, he said, were unhappy at being excluded from crucial meetings; in some cases the exclusion was despite specific request for being involved in such meetings.

It is necessary for the long-term health of the organisation and the multilateral trading system it seeks to promote and preserve, that we collectively address the issue of transparency and inclusiveness in the decision-making process.

Speaking immediately after India, and unusually for itself, the United States appreciated the efforts behind the paper and suggested a codification of best practices. While agreeing with several details, like bringing out minutes on time and the central role of the General Council and the need to complete as large a part of the draft Ministerial Declaration as possible in Geneva, the US said that different Ministerial Conferences had different objectives and procedural needs, and a one-size-fits-all set of procedures would not do. There was a need for flexibility, and it was hard to imagine the success in Doha without this flexibility.

Amb. Bryn from Norway agreed with many of the points, and said that with the experience of Doha there was a need to look at what happened. At the same time, there was a need for flexibility, and ways should be found for representation of smaller groupings of countries. He suggested that the General Council should hold consultations with the membership on the proposals.

Hong Kong Chinas Stuart Harbinson also harped on the need for flexibility, and argued that in the absence of a consensus in the run-up to Doha, Moore and he had forwarded a text to the ministers on their own responsibility, and the final outcome and its closeness to their own draft showed they had been right.

In providing general support to the LMG paper, China laid stress on the need for neutrality and impartiality of the secretariat and the DG.

The EC agreed with the need for transparency and need to build on experience, but argued that the procedures followed at Doha were satisfactory and could be built upon, and with flexibility and room for manoeuvre.

Brazil also was positive on the paper but stressed the need to avoid unnecessary rigidity. It supported Norways suggestion for consultations.

The Philippines shared the objectives of the paper and said flexibility should not become a licence for sensitive issues being brought up at midnight in a meeting not attended by all members - a reference to the shenanigans at the Presidential suite in Doha where the EC and US kept bringing up last-minute proposals and formulations.

Korea was critical of the many details of procedures in the proposal, while New Zealand was sceptical of its being agreed in consultations, though it agreed on the need for an inclusive process, but ensuring these did not create unnecessary blockages or long-term failures.

Turkey was positive and stressed the need for participation of all members in decision-making.

Singapore argued that the permanent representatives at Geneva should not tie the hands of ministers.

Malaysia however said that guidelines were needed and consultations would produce meaningful results as had happened over the issues relating to the Trade Negotiations Committee. Any draft should clearly bring to the ministers attention the difficulties of countries on issues. Otherwise the position of individual countries would be prejudiced at the Ministerial Conference. In any event, last-minute surprises should be avoided.

Colombia agreed on the need for guidelines but felt some points went too far. Both Colombia and Venezuela saw some merit in conferences meeting outside Geneva. Chile was negative to the proposals and said too many rules would paralyse the organisation. It could also not agree that the DG should be impartial, arguing that he had to be partial to his mandate.

Japan agreed on the need to develop guidelines and for transparency and inclusiveness. The Ministerial Conferences, in its view, should be the last resort for resolving differences.

Pakistan disagreed with those who viewed the process to and at Doha positively and said that many of its own and other delegations concerns had not been taken into account in the process. It was also opposed to last-minute surprises and use of non-conventional negotiating tactics.

At the end of the discussions, Moore viewed the discussions as healthy and said the lessons from Seattle and Doha should not be forgotten. He claimed that no one who wanted to speak had been refused the floor at Doha. He had his own ideas in the light of Doha and would formulate and present them in due course.

Chairman Marchi said the item would be listed on the agenda of the next General Council (in July) for other members to comment or make their own proposals, and he would then hold consultations.

Other matters

Earlier, the General Council, among other things, agreed to the compromises for derestriction of documents.

The US waiver under the Jones Act came up for discussion, and the US said that nothing had happened over the year to enable it to change its position.

Chile brought up the problems which it said had been created by differences in language used between the English and Spanish texts of the Uruguay Round agreements, as a result of which the Spanish version, unlike the English, had made some rules obligatory. It thought the problems could be resolved by agreed clarifications. Consultations are to be held on this proposal.

Trade officials and some diplomats noted that in the final stages of the Uruguay Round negotiations, the texts adopted were translated and put before the plenary meetings, and after December 1993, the official draft texts were scrutinised by legal drafting committees. The French- and Spanish-speaking delegations also went through the texts in their languages. Even over the English texts, some of the internal contradictions and variations were brought up, but at that time, the proponents of the agreements cautioned against changes that would upset the compromise and felt the problems could be resolved later as and when they arose.

In the WTO dispute settlement process, with all three texts (English, French and Spanish) being recognized as official and equally valid, the panels and Appellate Body (guided by the secretariat) have sometimes used the Spanish or French versions to support their own interpretations, when the ordinary meaning of a word or words in the English dictionary seemed to give two or three different meanings. The panels and the AB have provided rulings that have generally increased the obligations on developing countries, using the Spanish or French versions to buttress their case.

The process of clarification would therefore not be so easy, some trade officials said.

In the secretariat, the top two or three posts in the legal division are vacant or with officials in the process of leaving the job, and the rules division head also is absent for health reasons. And Moore himself is at sixes and sevens with most of the secretariat and senior officials.              

The above first appeared in the South-North Development Monitor (SUNS - issues no. 5117 and 5119), of which Chakravarthi Raghavan is the Chief Editor.

The LMG proposals

Chakravarthi Raghavan

ON 13 May in their joint communication, the 15 LMG countries said that since 1995, four Ministerial Conferences had been held and the procedures adopted both at the preparatory process in Geneva and at the Ministerial Conference itself had been different.

They added: This uncertainty in the process makes it difficult for many members to prepare themselves for the Conference. Some basic principles and procedures for this Member-driven organisation need to be agreed upon, so that both the preparatory process and the conduct of the Ministerial Conference are transparent, inclusive and predictable.

In the preparatory process at Geneva, the countries said, the aim should be to finalise the agenda for the Ministerial Conference and a broad work programme resulting from the agenda, to be proposed for the consideration of the conference. The Geneva process should aim at finalising a draft Ministerial Declaration, reflecting the priorities and interests of the entire membership.

As guiding elements for the preparatory process, the LMG members proposed that:

·        all consultations should be transparent and open-ended, and the preparatory process conducted under the close supervision of the General Council. Any consultations or meetings held outside this process are not to be part of the formal preparatory process, and any negotiating procedures to be adopted should be approved by members by consensus at formal meetings.

·        the draft agenda should be drawn up only after members have been given an opportunity to express their views, and once the agenda and parameters are agreed upon, changes may be permitted only if so decided by the entire membership.

·        there should be frequent formal meetings of the General Council to take stock of the progress in the preparatory work and ministers should be drawn up of such meetings.

This would help members which have no delegations at Geneva and give an indication of the status of work to capital-based officials. And given the difficulties of non-Geneva-based members in sending representatives for such meetings, a formal meeting of the General Council should be scheduled just before or after the Geneva week, for such delegations.

·        there should be sufficient time for delegations to consider documents to facilitate proper consideration by and consultation with capitals.

·        the language of the draft Ministerial Declaration should be clear and unambiguous, and the draft should be based on consensus. Where this is not possible, the differences should be fully and appropriately reflected in the draft, either through listing the various options suggested by members or through the chairperson reflecting the different positions on issues.

If the majority of the membership has strong opposition to the inclusion of any issue in the draft Ministerial Declaration, then such an issue should not be included in the draft declaration.

·        the work on the declaration should be completed in Geneva to the maximum extent possible. Only those issues listed as options or where the chairperson has reflected different positions should be left for the ministers to deliberate and decide at the Ministerial Conference.

·        A draft Ministerial Declaration can only be forwarded to the Ministerial Conference by the General Council upon consensus to do so.

·        in the preparatory process for the Ministerial Conference, the Director-General and the WTO secretariat should remain impartial on the specific issues being considered in the Ministerial Declaration.

·        sectoral work by working groups is an effective way for expediting resolution of pending issues.  The number, structure and chairpersons/facilitators for such working groups should be decided by the General Council in Geneva, in advance of the Ministerial Conference, through consultations among all members.

In terms of the process at the Ministerial Conference, the LMG proposed that:

·        the agenda for the conference should not be adopted at the ceremonial opening session, but at the first formal plenary session immediately thereafter.

·        a Committee of the Whole (COW) should be established at all Ministerial Conferences and this Committee should be the main forum for decision-making, and all meetings of the COW should be formal.

·        the chairpersons including facilitators who would conduct consultations and meetings on specific subjects at the Ministerial Conference should be identified by consensus in the preparatory process in Geneva through consultations among all members, and such persons should hail from members that do not have a direct interest in the subject assigned for consultations.

·        the consultations by the chairperson/facilitator should be at open-ended meetings only. The chairperson/facilitator could convene meetings of proponents and opponents on the subject assigned, and any other interested member should be free to join such meetings. The schedule of each meeting shall be announced at least a few hours before the meeting.

·        consultations should be transparent and inclusive and all members should be given equal opportunity to express their views. Chairpersons/facilitators  should  report  to  the COW periodically and in a substantive way.

·        all negotiating texts and draft decisions should be introduced only in open-ended meetings.

·        late-night meetings and marathon negotiating sessions should be avoided.

·        the language of the declaration should be clear and unambiguous. All drafts shall be considered and finalised in a drafting committee to be appointed for that purpose by all members, and the membership should be open to all members.

·        the secretariat and the Director-General of the WTO as well as all chairpersons/facilitators should assume a neutral/impartial and objective role, and they shall not express views explicitly or otherwise on specific issues being discussed in the Ministerial Conference. Specific rules to conduct the work of the chairs and vice-chairs of the Ministerial Conference should be elaborated.

·        discussions at the Ministerial Conference on the draft Ministerial Declaration should focus on issues not agreed upon in the Geneva process and various alternate texts developed at Geneva.

·        any new draft on specific issues should be circulated to all members well in advance so that members have sufficient time to consider them. To ensure transparency in the negotiating process, any draft on specific issues should clearly indicate the member  or  members  suggesting  the  draft.

·        the duration of the Ministerial Conferences should be in accordance with the schedule agreed upon in Geneva, as many delegations make their travel and accommodation arrangements accordingly. If an extension is required, it shall be formally approved through consensus.

(The Doha Ministerial was extended by the chair without any formal decision of the conference, and the convening of the final plenary was put off for a time - after the departure of the Qatar Airways special flights that brought several of the ministers, including from the least developed countries, to Doha for the conference.)

·        in various meetings, formal as well as informal, during the Ministerial Conference, arrangements should be made for ministers to be accompanied by at least two officers. It is the right of any member to designate its representative, and in this connection the head of delegation has the discretion to mandate his/her officials to speak on his/her behalf.

[At Doha in the Green Room meeting, some of the African ministers who were allowed to attend (after their protests) were told they could not bring even their ambassadors as advisers to sit with them, even though some of the leading countries had two or three advisers inside and a host of lawyers and others just outside to enable consultations.]

The issue of the venue of Ministerial Conferences, the LMG pointed out, had been discussed during the Uruguay Round itself, when it was felt that the conferences should be held in the WTO itself. Apart from convenience, this would result in savings in costs and effort.

Many developing countries find it prohibitively expensive to participate in the Conference, the LMG said, adding: There could be a case for having all the future Ministerial Conferences after Mexico in Geneva itself. [The next Ministerial Conference will be held in September 2003 in Cancun, Mexico.]

The LMG also said that since Ministerial Conferences are to be held at least once every two years, and in terms of paragraph 1 of Article IV of the Marrakesh Agreement Establishing the WTO, it is strongly recommended that members review the evolving tendency of holding Ministerial Conferences that are primarily focussed on the launching or review of negotiations.