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International negotiations by virtual means in the time of the COVID-19 pandemic

With the onset of the coronavirus pandemic, in-person meetings and negotiations in the major diplomatic centres have given way to ‘virtual meetings’. In the article below, Vicente Paolo B Yu III explains why there can be no substitute for in-person negotiations.


THE novel coronavirus pandemic (COVID-19) brought to a halt in March 2020 the in-person meetings and negotiations that had been the bread and butter of multilateral diplomacy in major diplomatic centres such as New York, Geneva, Nairobi, Vienna, Rome and many other locations in which international organisations such as the United Nations are located.

These in-person negotiations among the delegates and negotiators of governments were crucial in enabling diplomats to speak directly with each other, work directly on the text of agreements together with each other and with facilitators, and work towards narrowing differences in positions and perspectives and eventually arrive at agreed compromise language to be included in the text that would eventually be adopted.

Pandemic-period silence procedure at the UN General Assembly

The United Nations General Assembly adopted decision 74/544 entitled ‘Procedure for taking decisions of the General Assembly during the coronavirus disease 2019 (COVID-19) pandemic’ on 27 March 2020 to establish a new ‘silent’ procedure by which General Assembly decisions could be taken remotely without the need to have in-person meetings or negotiations (see Box 1).1 

This ‘silent’ procedure enabled the UN General Assembly in the early months of the pandemic-induced closure of UN Headquarters in New York to adopt two resolutions relating to the pandemic. These are resolution 74/2702 entitled ‘Global solidarity to fight the coronavirus disease 2019 (COVID-19)’ adopted on 2 April and resolution 74/2743 entitled ‘International cooperation to ensure global access to medicines, vaccines and medical equipment to face COVID-19’ adopted on 20 April. Subsequently, two other resolutions were adopted in relation to the pandemic on 11 September.4

The UN Economic and Social Council also adopted new procedures during the pandemic beginning on 3 April enabling it to take decisions without in-person meetings.5

To date, virtual meetings ‘remain the preferred and recommended format’ for meetings in the United Nations in New York.6

World Trade Organisation meetings during the pandemic

In Geneva, which hosts the headquarters of many UN specialised agencies such as the World Health Organisation (WHO), the World Intellectual Property Organisation (WIPO), the International Labour Organisation (ILO), the International Organisation for Migration (IOM), the Human Rights Council, UN Refugees, and the UN Conference on Trade and Development (UNCTAD), and other international organisations such as the World Trade Organisation (WTO), in-person meetings were also suspended since mid-March 2020, in line with Swiss government recommendations prohibiting gatherings of more than five persons in order to limit the transmission of the coronavirus.

Since 15 June, following the relaxation of pandemic-related restrictions on public gatherings by the Swiss government, the WTO resumed in-person on-site meetings of delegates subject to some limitations on the number of people during such meetings and the observance of social distancing.7 While delegations were generally open to the idea of using virtual meetings solely for information exchange during the period in which no in-person meetings were held at the WTO, there was no agreement on using virtual meetings to conduct negotiations and to take formal decisions remotely.8

Decision-making by the WTO’s governing bodies (the Ministerial Conference and the General Council) is by consensus. Under footnote 1 of Article IX(1) of the WTO Agreement, consensus exists if no WTO Member explicitly and formally objects to the proposed decision at the meeting in which the decision is taken – i.e., silence means consent – keeping quiet during the meeting when the decision is being taken means consenting to that decision (see Box 2).

Meetings of the WTO General Council generally are in-person meetings taking place at WTO headquarters in Geneva,9 with its rules of procedure being based on the conduct of in-person meetings.

The importance of in-person meetings in international negotiations

International negotiations, especially those involving both developed and developing countries, are generally highly complex. The development and shaping of text that can cover various positions and eventually reflect compromise agreement or consensus will generally require direct in-person interactions among negotiators.

This is generally why developing countries in various international fora, such as the UN climate change negotiations and the WTO negotiations, have often consistently called for negotiating procedures which are transparent, participatory and text-based, so that their negotiators can participate effectively. Negotiators negotiating in person allows issues to be resolved directly. In-person meetings help ensure inclusivity and transparency in terms of the text being negotiated and the outcomes of the negotiations, whether these are UN General Assembly resolutions, WTO General Council decisions, or other acts of international organisations’ governing bodies.

In international policy negotiations in which meaningful and effective universal participation is important, such as those in the WTO and the United Nations, the ability of all Member States to access and participate in the negotiations must be enabled and ensured. This is a condition sine qua non, otherwise the legitimacy of the negotiated outcome will be lost.

Important considerations in relation to virtual in lieu of in-person negotiations

During the pandemic-related period during which international organisations did not have in-person meetings, there were suggestions that international organisations could continue to carry out international negotiations through alternative means such as the ‘silence procedure’ adopted by the UN General Assembly or through the use of modern telecommunications technology (such as tele- or video-conferencing).

However, the use of virtual meetings for international negotiations has to consider issues of transparency and full and effective participation. Academic studies on negotiations have highlighted that negotiations involve exchanging messages and cues, both verbal and non-verbal, among the parties involved and that successful negotiation often depends on the parties’ respective abilities to read and act on these cues in a dynamic way to eventually lead to agreed outcomes. This is particularly important given the multicultural and multilingual context in which international negotiations take place. This requires that the negotiators must be able to see, hear and understand each other as broadly as possible to avoid misunderstandings arising from mistranslated or misunderstood statements or cultural mannerisms or behavioural and speech patterns.

During international negotiations, negotiators often receive and look for contextual cues (such as the other negotiators’ gestures, posture, facial expressions and tone of voice) to understand what the other parties are saying and that such understanding is what the other party meant. Without these, miscommunication and misunderstanding can often occur. Additionally, the lack of these contextual cues can create distrust, increase competition, exacerbate contention, reduce accountability, and induce a fear of deception, thereby possibly leading to a breakdown of the negotiations and resulting in no outcome. This is why in-person meetings are crucial to the success of international negotiations, as only in-person meetings can provide the broad contextual environment for such verbal and non-verbal cues to be perceived.

The use of virtual meetings to conduct international negotiations during the pandemic can have significant downsides. These include:

• Challenges in access to adequate telecommunications hardware or software – Given the different economic, policy and technological circumstances of individual delegates, delegations and governments, there will be unequal levels of availability and access to the telecommunications hardware or software used to engage in virtual meetings. These limitations mean that those with less ability to connect cannot as effectively and meaningfully participate, which means that they will have less of a voice in international negotiations. Low-speed or low-bandwidth Internet connections often affect developing countries more than developed countries due in many cases to telecommunications infrastructure constraints as well as technology availability.

•     Difficulties in seeing the physical personal negotiating context for verbal and non-verbal cues – Virtual meetings (whether by teleconference, videoconference or email) restrict the ability of the participants to fully see and interact with the other participants, whether because one sees only the face on-screen but not the overall body language, or because the poor or weak Internet or telecommunications connections or technologies being used or any background noise or images being transmitted can limit or degrade the transmission of audio and video signals, thereby making it difficult to hear or see the other participants fully. These difficulties are particularly prominent in terms of audio- or text-only communications rather than audio-video communications. There could also be environmental or background distractions that degrade the ability of participants connecting remotely to concentrate fully on the discussion.

• Difficulties in technical connections – There are often technical difficulties that come up when doing virtual meetings, whether it is in terms of connecting to the call, maintaining good and clear audio and video signals, suddenly losing connections while in the midst of the meeting, signal transmission time lags which can impose unnatural gaps in the conversation flow among the participants, and other similar technical difficulties or the lack of technical assistance.

• Multiple time zones – International negotiations may also often involve participants in their homes (e.g., in capital cities) connecting from multiple time zones. This could mean that some participants will be either staying up very late in the night or waking up very early in the morning, with consequent impacts on their ability to meaningfully concentrate and effectively participate.

• Difficulties with respect to simultaneous interpretation and document translation into multiple languages – One of the major advantages in having official in-person meetings in the UN and other international organisations with the facilities to do so is the fact that particularly in meetings where decisions are to be taken, there are often simultaneous and real-time professional interpretation services available. This allows for much greater interactivity and engagement by those delegates who may not be fluent in the primary negotiating language (which often is English). Additionally, draft texts of proposals which are to be placed for decision also get translated into the official languages before the actual meeting in which the decision is to be made takes place. While the state of the technological development of the software and technical specifications for real-time simultaneous interpretation and machine-based translation of documents have been improving steadily, there remains a huge gap in quality, accuracy, adaptability and speed between in-person professional interpretation and document translation during meetings and their digital alternatives. Additionally, in various international organisations, developing-country groups often rely on the physical facilities and interpretation facilities of the international organisation’s secretariat to undertake internal group meetings to prepare their group negotiators for subsequent substantive negotiations with other parties. These are services that might not be available virtually for various reasons to these groups.

• Privacy and security issues – While many virtual meeting applications and services highlight their security features, it is now a given that data that is transmitted over the Internet, satellite or telephone lines may be intercepted and listened to or read by those countries or persons that are technologically equipped to do so (or are physically with one of the remote participants listening in).10 Additionally, the ease of recording virtual meeting conversations using current software can easily result in leaks of sensitive information during the negotiations. There is also the possibility that third parties that should not be part of the negotiations could hack into the virtual meeting if security protocols are not secure enough.

Conclusion

To conclude, in the context of international negotiations, including in the UN and in the WTO as well as in others, substantive negotiations through virtual meeting modalities would not be sufficient for the conduct of open-ended, dynamic and substantive negotiations on issues that will have substantive policy impacts and implications at the domestic and international levels for countries.

Only open, transparent and fully participatory in-person negotiations would allow for meaningful equality of participation and access to such negotiations by developing countries and ensure that any negotiated outcomes can also reflect their views and perspectives.                                

Vicente Paolo B Yu III is a Senior Legal Adviser of the Third World Network.

Notes

1    The adopted text of the resolution on a modified silence procedure for General Assembly resolutions to at least the end of May 2020 can be found here: https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/COVID-19-Draft-decision-24-March-2020.pdf. The UN General Assembly President confirmed adoption by the General Assembly of this decision by silence procedure on 27 March in his letter to UN Member States (see https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/PGA-letter-dated-27-March-on-COVID19.pdf). The letter from the UNGA President confirming that the silence procedure was not broken can be found here: https://www.un.org/pga/74/2020/03/24/procedure-for-taking-decisions-of-the-general-assembly-during-the-coronavirus-disease-2019-covid-19-pandemic/ and https://www.un.org/pga/74/2020/03/27/conclusion-of-the-silence-procedure-on-the-decision-enabling-the-ga-to-take-decisions-during-the-covid-19-pandemic/. The UN Secretariat released a step-by-step guide on how the modified silence procedure under decision 74/544 would be implemented

      (see https://www.un.org/pga/74/wpcontent/uploads/sites/99/2020/04/Updated-Rev-marked-2-Procedure-for-decision-via-silence-procedure.pdf). 

2    See https://undocs.org/en/A/RES/74/270 

3    See https://undocs.org/en/A/RES/74/274 

4    See https://undocs.org/en/A/RES/74/306 and https://undocs.org/en/A/RES/74/307

5    See Economic and Social Council decision 2020/205 of 3 April 2020 entitled ‘Procedure for taking decisions of the Economic and Social Council during the coronavirus disease (COVID-19) pandemic’, at https://www.un.org/ecosoc/sites/www.un.org.ecosoc/files/files/en/2020doc/President_letter_on_

      approval_of_silence_procedure_signe

      d.pdf  

6    See https://www.un.org/en/coronavirus/covid-19-mitigation-meetings

7    See https://twitter.com/wto/status/1272213460776964097

8    For more information, see D. Ravi Kanth, ‘COVID-19: WTO General Council Chair to convene virtual meet on 15 May’, South-North Development Monitor (SUNS), Issue No. 9113, 5 May 2020, at http://www.sunsonline.org/, and at TWN Info Service on WTO and Trade Issues, 6 May 2020, at https://www.twn.my/title2/wto.info/2020/ti200505.htm

9    Meetings of the General Council are convened by the WTO Director-General. See Rule 2 of the WTO Rules of Procedure of the General Council, WT/L/161, 25 July 1996, at https://docs.wto.org/dol2fe/Pages/SS/directdoc.aspx?filename=q:/WT/L/161.pdf 

10 See, e.g., https://privacyinternational.org/learn/what-governments-do and https://privacyinternational.org/learn/what-companies-do

Box 1: Genesis of UN General Assembly decision 74/544

THIS decision was taken by the UN General Assembly (UNGA) after a series of increasingly rigorous safety measures and steps made by the General Assembly President over the month of March in relation to the COVID-19 pandemic, including his letter of 11 Marchi limiting the number of people in in-person meetings and cancelling some meetings and events; his letter of 13 Marchii cancelling all in-person meetings and starting exploration of virtual meetings; his letter dated 17 Marchiii postponing or cancelling all in-person meetings of the General Assembly up to 17 April 2020; his letter dated 17 Marchiv to the UNGA’s General Committee seeking their advice on how to conduct the proceedings of the General Assembly in light of the pandemic, including adoption of essential decisions under a silence procedure; and his circulation to the General Assembly on 24 Marchv of a draft decision for the procedure for taking decisions of the General Assembly during the COVID-19 pandemic. In effect, the General Assembly decision to adopt the COVID-19-caused silence procedure for taking decisions was adopted also under the pre-existing silence procedure after the proposal to do so was first discussed by the General Assembly President with the Assembly’s General Committee.

The adopted modified silence procedure at the UNGA is to be used until the end of May 2020 unless extended by silence procedure by the UNGA. The original version of the silence procedure draft decision proposed on 17 Marchvi by the UNGA President did not have a deadline. That draft decision was subsequently modifiedvii so that it would last until the UNGA is able to meet again in plenary and then further revised to provide for the end-May deadline in the draft that was finally adopted.viii

It should be noted, however, that the ‘silence procedure’ per se is not new to the General Assembly. Prior to the suspension of in-person meetings of the General Assembly due to the pandemic, when negotiations among delegations ended with a resolution on which a tentative agreement (i.e., ‘agreed ad referendum’) among the UN Member States had been reached, delegations may need to get final approval from their governments. In such a case, the draft resolution was declared by the General Assembly President to be ‘in silence procedure’ for a specified time and if no Member State objected to the draft by the given deadline, the draft text was then considered as agreed and adopted.

i     See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/COVID-19-Letter-to-Member-States.pdf

ii    See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/COVID-19-II-LETTER-TO-MS.pdf

iii   See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/17-March-Letter-to-Member-States-on-COVID19.pdf

iv   See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/Letter-to-General-Committee-on-COVID-19.-Revised-Annex-B-II.pdf

v    See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/COVID-19-Draft-decision-24-March-2020.pdf

vi  See https://www.un.org/pga/74/2020/03/18/letter-to-general-committee-on-covid-19/  and https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/Letter-to-General-Committee-on-COVID-19.-Revised-Annex-B-II.pdf 

vii See https://www.un.org/pga/74/2020/03/20/letter-to-all-members-of-the-general-committee-covid19/ 

viii       See https://www.un.org/pga/74/wp-content/uploads/sites/99/2020/03/COVID-19-Draft-decision-24-March-2020.pdf

‘Explicit consensus’ as a decision-making device in the WTO

THE only times that the ‘silence means consent’ consensus rule under Article IX(1) of the WTO Agreement was deviated from were in relation to the launch of WTO negotiations on the relationship between trade and investment, on competition policy, on government procurement, and on trade facilitation. In the WTO 1996 Singapore Ministerial Declaration,i the Ministerial Conference declared that ‘It is clearly understood that future negotiations, if any, regarding multilateral disciplines in these areas [investment and competition], will take place only after an explicit consensus decision is taken among WTO Members regarding such negotiations.’ This was subsequently followed by the requirement in paragraphs 20, 23, 26 and 27 of the WTO 2001 Doha Ministerial Declarationii for decisions to be taken by ‘explicit consensus’ on modalities of negotiations for the start of negotiations on investment, competition policy, government procurement and trade facilitation. Following this, negotiations on the Singapore issues were not launched at the WTO 2003 Cancun Ministerial Conference due to the lack of ‘explicit consensus’.

However, just under a year later, paragraph 1(g) of the General Council’s decision adopted on 1 August 2004iii stated that ‘the General Council decides by explicit consensus to commence negotiations [on trade facilitation] on the basis of the modalities’ set out in Annex D of that decision, and that the General Council agrees that the relationship between trade and investment, interaction between trade and competition policy, and transparency in government procurement ‘will not form part of the Work Programme set out in that [Doha] Declaration and therefore no work towards negotiations on any of these issues will take place within the WTO during the Doha Round’. This decision was taken ‘on the basis of the general acquiescence’ by heads of delegation at an informal meeting that was subsequently formally adopted by the General Council.iv

In its ordinary meaning and in the context in which the phrase ‘explicit consensus’ was used in both the Singapore and Doha Ministerial Declarations, ‘explicit consensus’, it seems, would have required that all Members expressly indicate their concurrence with the decision to be made before it will be deemed to have been agreed upon by consensus. This is to be contrasted with the ‘passive consensus’ rule under Article IX(1), footnote 1, of the WTO Agreement in which the failure to raise any objection to the decision to be adopted is presumed to mean that the Member is joining the consensus – even if that Member was absent at the meeting in which the decision was made.v

i     See WT/MIN(96)/DEC, 18 December 1996, at https://www.wto.org/english/thewto_e/minist_e/min96_e/wtodec_e.htm

ii    See WT/MIN(01)/DEC/1, 20 November 2001, at https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm

iii   See https://www.wto.org/english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm

iv   See WTO General Council, Minutes of Meeting – 31 July – 1 August 2004, WTO Doc. No. WT/GC/M/87, 4 October 2004, paragraphs 107 and 108.

v    For more discussion on the meaning of ‘explicit consensus’ as applicable to the Singapore issues in the WTO following the Doha Ministerial Declaration, see Vicente Paolo Yu III, ‘Clarifying the Status of Singapore Issues in the Doha Ministerial Declaration’, March 2002, at https://www.iatp.org/sites/default/files/Clarifying_the_Status_of_Singapore_Issues_in_t.htm

*Third World Resurgence No. 345/346, 2020, pp 96-100


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