TWN Info Service on WTO and Trade Issues (Jun22/25)
20 June 2022
Third World Network

Exclusionary unrepresentative processes behind the celebrated MC12 ‘Package’

By Kinda Mohamadieh (Third World Network)

Behind the WTO’s 12^th Ministerial Conference (MC12) compromised deal (‘Package’), announced early hours of the morning of 17 June was a highly orchestrated process privileging exclusive small-group negotiation settings and keeping the majority of the WTO Members outside negotiation rooms.

Small group configurations, or what is sometimes referred to as ‘Green Rooms’, dominated MC12 negotiation processes before and during the Ministerial meeting[1]. They were the privileged format in which all negotiations took place, including those on the ministerial outcome document (i.e. main Ministerial Declaration), on items on agriculture and food security, on fisheries subsidies, as well as those on the TRIPS Agreement decision and the e-commerce moratorium. This meant that MC12 kept with previous controversial experiences at the WTO[2] and took them to a new extreme, proving to be highly challenging for developing countries and Least Developed Countries (LDCs) to effectively take part in the negotiations on key documents that would shape the future of the organization and the multilateral trading system[3].

Negotiations in small groups are often promoted by personnel of the WTO secretariat as facilitative of multilateral negotiations and the potential for deliverables. Some claim that small group meetings are unavoidable for any agreement to be struck at the WTO[4]. In reality, and what the MC12 experience clearly exposed, is that such processes effectively undermine the Member-driven multilateral inclusive process.

The conference was extended by one day[5], and the extension was supposed to be until 3 pm of the 16 June instead of ending on 15 June as initially planned. Yet, 3 pm of the 16^th passed with no clarity about where negotiations stood and when the closing of the conference will take place. Negotiations continued in small group configurations all through the night until an informal Heads of Delegations (HoD) meeting was convened around 4 am on the early morning of the 17 June.

That informal HoD meeting was supposed to be the main multilateral space throughout the whole Ministerial that allowed delegations that were not involved in small group negotiations to study the text and assess the extent to which it meets their country’s concerns. Yet, this HoD meeting together with the formal closing ceremony[6] did not last more than an hour. The gavel was heard in the closing ceremony around 5 am in the morning. No delegation took the floor during those two meetings.

Members had in their hands copies of four declarations and decisions that were supposed to be considered for adoption (which came up to around 11 pages of legal text)[7]. However, they did not have with them the latest copies of the Draft Ministerial Decision on the TRIPS Agreement, the Draft Ministerial Decision on the Work Programme on electronic commerce as well as the Draft Ministerial Decision on the Agreement on Fisheries Subsidies. These were among the most contentious negotiation areas until the last minute of the Ministerial. According to a participant who attended the informal HoD meeting, the text on fisheries subsidies and the changes that had been introduced in it as a result of small group negotiations were presented verbally during the HoD meeting. [8] Similarly, not all delegates had the latest text on the TRIPS Agreement Decision at that point. 

Taking small group configurations to a new extreme

Negotiations on the Ministerial Outcome Document took place in small groups, keeping most of the WTO Membership outside the process, instead of being deliberated in a setting involving all the WTO membership. It is particularly important that all WTO Members have a proper opportunity to effectively participate in negotiating such a text that will set the political guidance for the WTO’s future work. Yet, this was not the case at MC12.

The TRIPS Agreement decision was negotiated in a small group configuration based on the text that emerged from the process set up and facilitated by the WTO Director-General (DG) and her team. The latter had involved only four countries. One of the most contentious elements of the text, the eligibility criteria, was ultimately negotiated among only two Members, the United States and China. The rest of the small group involved in negotiating the decision on the TRIPS Agreement finished their work on 16 June but were waiting for a bilateral resolution on the issue of the eligibility criteria with respect to the TRIPS Decision, which was only concluded at the latest hour of the conference.[9]

These are two examples from among many that could be cited. To a large extent, small group meetings replaced the multilateral process at MC12, and by default undermined full effective participation by many Members and the possibilities of a meaningful inclusive process driven by all the WTO Members.

At the beginning of the Ministerial Conference, some delegates had complained that they spent a significant amount of time just to identify the multiple meetings that were ongoing so as to be able to gather needed information and update their delegations. Some small group meetings were organized with a seeming intention to put pressure on certain developing countries active on one of the negotiated issues, for example by bringing one developing country delegation into a late-night meeting that was attended only by other developed countries with opposing views on that issue. According to one observer, there were cases where a number of developing countries had raised concerns collectively or raised similar concerns, but only one or two were brought into the small group meeting, while others were taken into bilateral meetings. Such orchestrated small groups seemed to follow the tactic of ‘divide and conquer’ in order to undermine or dilute the positions of developing countries trying to reflect common national positions and interests in the negotiations.

These opaque small group processes, where what happens – whether positions taken, or pressures exerted – is not fully known to Members that are not present in the room or to the broader public, enable a game of blame shifting to be played.  On this point, civil society organizations present at MC12 highlighted that ‘the undemocratic, exclusionary “Green Rooms”,[10] in which most developed countries are invited but from which most developing countries are excluded, have resulted in proposed texts for MC12 that are highly biased towards the proposals of rich countries …’[11].

In one briefing with civil society organizations, the WTO DG was asked about the abundance of green rooms or small group negotiation meetings and its implications on the meaningful and effective participation of developing countries and LDCs. The DG claimed that such style of work was dictated by the war on Ukraine, as some States did not want to be present with others in one room. This answer did not convince those posing the question.

It could be argued that small meetings could be a way to enable negotiations to be undertaken in parallel on multiple issues and a way to allow delegations to choose where they privilege to participate. However, if that was the case, then participants in small meetings should not be pre-selected and those meetings should not be closed to Members interested in participation. Instead, meetings ought to be announced to the whole Membership and Members should be given the opportunity to choose where they want to participate. This was not the case in the context of MC12.

[It is to be noted that the United Nations practice in negotiations is that small groups are open to all Parties and no decision is accepted until a plenary of all Parties agree. There is also conscious effort to ensure that there are not too many parallel small group negotiations scheduled in view of the small delegation size of most developing countries and LDCs.[12]]

Who selected the participants in each small meeting was not clear; was it the DG, was it the DG’s staff in the secretariat, was it the facilitators assigned to handle different issue areas on the agenda of the ministerial, or was it a combination of those? 

It was often repeated that the small meetings included representatives from the core Member groups[13] and countries with specific positions or interests in the matter being deliberated. Yet, this did not apply to all meetings. For example, negotiations on parts of the Ministerial Outcome Document did not always involve representatives from the LDC group. It was also revealed in the run up towards MC12 that at least two small developing country delegations who asked to participate in small group meetings on issues of interest to them were not let in the room.

Furthermore, the idea that including group coordinators in the small group meetings is enough to guarantee an inclusive transparent process involves multiple over-assumptions. First, it over assumes the capacity of group coordinators to effectively follow the different and often simultaneous tracks of negotiations and to relay them back to their group Members, properly and with the needed details. Second, it assumes that the group operates homogenously on all issues. By doing so, this practice could end up further undermining the possibility for a Member to raise concerns particular to it, especially where these concerns may not coincide with the overall Group position or how that position is presented in small group meetings.

It is often at a late stage of the negotiation process that a text emerges from a small group process and is presented to the rest of the Membership. At that stage, political stakes are usually very high, and the text is often presented as agreed by the ‘big players’.  So, for any Member to stand up in the room where all other Members are present and ask to re-open the text, present an objection, or a request for an addition or adjustment carries significant political implications which by itself creates a barrier. Thus, by default, the processes described here result in texts that are akin to ‘take-it-or-leave-it’ texts, even though rejecting the text might not even be an option. Any Member who is considering to take the floor at such a late stage could be blamed for undermining the ‘delicate balance’ that the text presents, might face a line-up of defenders of the text (often from bigger richer countries), or might be accused of delaying or jeopardizing the deal or deliverable.

This is exactly what the DG, Chair of MC12 and the Chair of the General Council warned in their letter to delegations circulated around 1.30 am on the morning of 17 June, where they said to Members: ‘… we appeal to you to take into account the delicate balance struck within and across the four-plus pillars…this unprecedented package is the result of compromises based on tough negotiations…’[14].

Heads of Delegation (HoD) meetings at MC12: more of a cosmetic arrangement

During the MC12 days, open HoD meetings were held at the end of almost every day. According to the WTO secretariat, these kinds of meetings are ‘[o]ne step away from the formal meetings … that still include the full membership’[15]. In principle, such HoD meetings are supposed to be the space where all WTO Members collectively consider what emerged out of small group deliberations, thus allowing all Members to substantively review those results and reveal their positions in that regard.

But during MC12, HoD meetings organized at the end of the day did not present a real opportunity for Members not invited to the small negotiation groups to effectively take part in the negotiations. They lasted for a short time and were mainly updates from the facilitators of various negotiation tracks. Generally, Members did not take the floor during these meetings. It is worth asking whether these meetings presented a genuine space for Members to effectively intervene and reflect their country’s concerns or were a mere cosmetic addition to the agenda of the Ministerial for the sake of allowing some to claim that everyone had an opportunity to intervene.

Process issues in WTO Ministerial Conferences: long-standing concerns for developing countries

Developing countries had repeatedly raised serious concerns and objections on the ways in which the process has been handled in the lead to and during multiple WTO Ministerial Conferences, which they considered had undermined their participation in the negotiations. They had also sought to clarify the principles that ought to guide such processes. For example, in November 2017, after the Ministerial Conference held in Buenos Aires, the African Group, Bolivia, Cuba and Venezuela presented a submission in which they stressed the ‘importance of creating a transparent, democratic, bottom-up, all-inclusive and consultative decision-making process in the WTO, as this is vital to preserving the credibility of the WTO and the multilateral trading system’[16].

They also stressed that ‘the Ministerial Conference is the forum for decision-making. All meetings in this configuration should be open to all Members’. They added that ‘there should be sufficient time for delegations to consider documents to facilitate proper consideration by, and consultation with the capital. Any documents to be presented for decision- making shall be shared with all Members at least 12 hours before the Session as to enable sufficient consultations…’.

In another submission earlier in 2002, a number of developing countries had submitted similar propositions on the process, and also stressed that ‘consultations by chairperson/facilitator [who conduct consultations and meetings on specific subjects at the Ministerial Conference] 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. For this to be achieved, the schedule of each meeting shall be announced at least a few hours before the meeting’[17].

Processes characterized by exclusion, often keeping most delegations in the dark till the last minute, were a determining factor of the level of engagement of delegations in shaping the outcomes of MC12. This last Ministerial Conference, as with previous ones, had made it clear that one of the main issues that need to addressed in the functioning of the WTO are the lack of meaningful transparency and the dominance of exclusive processes that end up keeping the overwhelming majority of the Membership outside the decision-making processes.