TWN Info Service on WTO and Trade Issues (May13/04)
8 May 2013
Third World Network  

WTO D-G selection process "grossly flawed", says Kenya
Published in SUNS #7571 dated 23 April 2013
 
Geneva, 22 Apr (Kanaga Raja) -- The first round of consultations in the selection process for the next Director-General of the World Trade Organisation (WTO) was "grossly flawed" and has eroded the credibility of the entire process, Kenya has said in a formal communication to the Chair of the General Council (GC), shortly following the elimination of its candidate in the first round of consultations.
 
The Kenyan formal communication has been circulated at its request to the WTO members as a Job document (JOB/GC/44 of 17 April 2013).
 
[The Kenyan communication, and the first round of the selection process, has attracted among others, several posts on the specialist web-log, "International Economic Law and Policy Blog" (IELP), published by WorldTradeLaw. net with contributions by a number of mainly US trade law academics and lawyers, including Professor Simon Lester, an academic and trade lawyer, who worked at the WTO's Appellate Body (AB) secretariat from February 1999 to January 2001, as a Legal Affairs Officer. The law experts posting at the site generally appear to favour liberal free trade, but look askance at neo-liberal, neo-mercantilist versions. The several posts, hyperlinks and comments are at http://worldtradelaw.typepad.com/]
 
The appointment process to replace Mr Pascal Lamy, whose second four-year term ends on 31 August, is being conducted by a "Troika", the GC Chair, Ambassador Shahid Bashir of Pakistan, assisted as facilitators by the Chair of the Dispute Settlement Body, Ambassador Jonathan Fried of Canada, and the Chair of the Trade Policy Review Body, Ambassador Joakim Reiter of Sweden.
 
In the communication dated 17 April and addressed to GC Chair Ambassador Bashir, Kenya said that it does not believe in the process moving forward "unless your Troika fully commits to adhere strictly to the rules and procedures of selection in a transparent and unambiguous manner. We are convinced that now is the opportunity to restore both the credibility of the process and ensure that a candidate who enjoys the widest support of members becomes the next Director General."
 
Kenya has warned that it will therefore retain its right not to join the consensus "until we are satisfied that the next stages of the selection process have adhered strictly to the rules and procedures in a transparent and unambiguous manner. The Troika must be well seized of the burden and responsibility bestowed upon them by the membership."
 
The first round of consultations was held from 2-9 April, and GC Chair Ambassador Bashir had reported on the outcome at an informal meeting of the General Council on 12 April, whereby he had informed the membership that the four candidates least likely to attract consensus were Mr Alan John Kwadwo Kyerematen (Ghana); Ms Anabel Gonzalez (Costa Rica); Ms Amina C. Mohamed (Kenya); and Mr Ahmad Thougan Hindawi (Jordan).
 
A second round of consultations began on 16 April and is due to conclude on 24 April, and it is now considering a revised slate of five candidates: Ms Mari Elka Pangestu (Indonesia); Mr Tim Groser (New Zealand); Mr Herminio Blanco (Mexico); Mr Taeho Bark (Republic of Korea); and Mr Roberto Carvalho de Azevedo (Brazil).
 
Following the report by the GC Chair at the informal meeting of the General Council on 12 April, Costa Rica, Ghana and Jordan had announced that their candidates were withdrawing, while Kenya, withholding consensus, said that its candidate, Ms Mohamed, remained in the contest and had declined to withdraw.
 
The delegates of Ghana and Kenya had raised concerns about the process, particularly over the fact that a few delegations had submitted more than four preferences and some less than that. This, in their view, was not a positive development.
 
In his report at that informal meeting, Ambassador Bashir had said that he understood that there are "some concerns in some quarters regarding the results".
 
Ambassador Bashir had said: "The results were clear and unambiguous, whether measured in terms of number of preferences received, or by breadth of support across geographic regions or across the generally recognized categories of Members - LDCs, developing countries and developed countries."
 
Ambassador Bashir had also said that while Members, in the first round, had been urged to come forward with four preferences, and "all but a few" had done so, "these few Members expressed either five or fewer than four preferences, and came from different geographic regions and all the recognized categories of Members - LDCs, developing countries and developed countries." (See SUNS #7565 dated 15 April 2013 for a full report).
 
In its communication addressed to the GC Chair, Kenya recalled that during the informal General Council meeting of 19 March, Ambassador Bashir had outlined clearly how he intended to conduct the consultations.
 
It quoted the third paragraph of his statement (circulated as Job document JOB/GC/39) at that meeting: " ... with regard to the question to which Members will be expected to respond in the consultations, as was done in 2005, the question will be: ‘What are your preferences?' - this means more than one, that is multiple, preferences without ranking. In view of what we heard from Members at the 13 March HODs [Heads of Delegation meeting], we urge all delegations to come forward with four preferences in the first round of consultations and, on this basis, Members are expected to express two preferences in the second round. On this point, let me also reassure Members here that we will not accept any negative preferences."
 
Kenya underlined five key principles (as highlighted in that paragraph): (a) The principle of more than one preference; (b) The principle of multiplicity; (c) The principle of no ranking; (d) The principle of naming four; and (e) The principle of non-negative preferences.
 
Kenya told the GC Chair that by allowing a member, whether a bloc or an individual state, to deviate from expressing four preferences, "you contravened the guidelines and procedures that you outlined to members. Furthermore, any Member who expressed more than four preferences, not only displayed a lack of respect for the Troika as well as the rules adopted for carrying out the consultations, but also undermined the Troika's integrity and the trust members bestowed on you."
 
In addition, said Kenya, "an expression of more than four preferences in effect negatively listed the other candidates. And any member you allowed to list only one, negatively listed eight candidates. Beyond negative listing, expressions of preferences less than, or more than four, allowed ranking contrary to the agreed principles governing the process."
 
[In a post on the IELP blog on 18 April, Rob Howse, Professor of International Law at New York University School of Law, said that what Kenya was basically saying (in its letter to the GC Chair) was that "by breaking the agreed norm that only four preferences could be expressed, the Chair made it easy for the EU to ensure that no African candidate went forward." Noting that Kenya "has also threatened to veto the final outcome of the selection process if its due process concerns are not addressed", Howse said that he would not be surprised "if other African countries followed suit."
 
[In a later post on 19 April, Howse has referred to the statement by the GC Chair at an informal meeting on 19 March (document JOB/GC/39), and said that an examination of that document "shows that Kenya has a pretty clear-cut case that procedures were violated when the EU was allowed to express five preferences in the first round of DG selection, such that it could effectively ensure the elimination of African candidates from the race."
 
[The document in question, Howse said, "refers to the importance of strict compliance with procedure and clearly states that Members are to submit four positive preferences. It also prohibits strictly and without qualification ‘negative preferences'." He further said: "This shows the importance of limiting positive preferences to four, since if there were no effective limit on positive preferences a Member could circumvent very easily the rule against ‘negative preferences'. That seems to be just exactly what the EU was doing in effect."
 
[In a separate post on the same day, "Hell Hath No Fury Like Europa (or Lamy) Scorned: Why the EU May Have Subverted the DG Selection Process", Howse has said that an European who has read his posts and who is an expert on EU external relations and a policy adviser at the highest levels on EU issues, has suggested that "what is likely going on is that the EU is punishing Africa for being recalcitrant in relation to the Economic Partnership Agreements that Europe has been trying to conclude on the continent. The individual in question said that one cannot underestimate the fury in Brussels as a result of African states not wanting to go along with these initiatives. Another angle the expert mentioned was that the EPAs were a pet project of Pascal Lamy when he was Director-General Trade, and that he had a lot of credibility invested in them. In sum: the revenge of a scorned suitor. How awful if it really did come down to this."
 
[In yet another post on 20 April, Howse said that "... Kenya has a remedy that does not require it to prove a violation of ‘hard' international law before a court or tribunal. It can simply block the process. Entirely legitimately, in my view. A hard rain's a-gonna fall..."
 
[In a further post on 21 April, on a meeting set for 22 April in Doha, Qatar on world trade and organised by the International Chamber of Commerce, Howse says in one paragraph that "at least two of the five WTO DG candidates remaining (based on the flawed process) are essentially unreformed neo-liberals: Blanco and Groser. Civil society should give this report and the Qatar proceedings a close look, and engage sooner rather than later."
 
[The post on the Doha meet refers to a document, http://bit.ly/12z2KWG, prepared for the meeting by the Peterson Institute, as an "updated catechism of neo-liberalism, ‘Payoff From the World Trade Agenda 2013'" and says "it is an apology for the Doha Agenda, and more broadly for the approach taken by Pascal Lamy during his tenure as WTO D-G. Big on services trade liberalisation, as if the financial crisis and the water privatisation disasters had never happened; high about Aid for Trade, although the evidence is that there's been little gain in poverty reduction; but on the positive side, advocating multilateralisation of the APEC deal on liberalised trade in green goods; aware of the dangers of ag (agriculture) export restrictions to food security; and... proposing that all panel and AB proceedings be webcast."] +