Since Doha, chairs in the WTO have followed the example set by Stuart Harbinson when he was Hong Kong’s ambassador to the WTO and chair of the general council. In the lead-up to the Doha ministerial, Harbinson submitted a draft ministerial declaration to the council "on his own responsibility’. Although this draft was opposed by the majority of members, Mr Harbinson disregarded the principle of decision-making by consensus in the WTO, did not include differing viewpoints on contentious issues (as is the practice), and totally sidelined developing countries’ objections to the text – even those objections which had been expressed in the strongest of terms.
In the eyes of many developed country governments (and a handful of developing countries) the results of Doha, which were very similar to the Harbinson text, was a major success. Another Seattle had been averted and developing country Ministers, under intense pressures, had capitulated.
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 Chair’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 a Member’s political clout. Wasn’t this what multilateralism was supposed to avoid?
On Friday, 18 July, the Chair of the General Council, Ambassador of Uruguay Perez-del-Castillo circulated a skeletal draft Ministerial Text for the Fifth Ministerial to be held in September. There are several problems:
CONTENTIOUS ISSUES
First, the draft still did not include many details on most of the controversial issues on the WTO’s agenda such as TRIPs and health, agriculture and the decision on the Singapore issues.
The exclusion of the contentious issues is highly problematic given that there is only one month to go before Cancun (WTO will be closed 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 will only be pulled out of the closet at a very late stage and that there will not be enough time to take into account their views. Will the Chair then submit a clean text which excludes their views? What will happen in the Ministerial? Even the biggest developing countries, such as India, feel unable to control the process in Ministerials.
‘OWN RESPONSIBILITY’
Second, the skeletal draft text was circulated to Members on the Chair’s ‘own responsibility’.
This raises the question of whether the chair of the general council intends to follow the example of Harbinson and 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.
DEVELOPING COUNTRIES OPPOSE CHAIRS RULING OVER NEGOTIATIONS
The issue of the exact role of chairpersons in the WTO was heatedly disputed following 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 establish some clear rules of procedure that would limit the powers of chairs.
In a 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, in the first Trade Negotiations Committee (TNC) meeting in January 2002 said,
"The African Group, together with other delegations, had made the setting up of ground rules a pre-condition to agreeing to the chairmanship of the Director-General (to the TNC). The Group could not understand why in a rules-based organization some of its partners had been averse to this proposal. The Group noted that the General Council Chairman had set out in his statement some rules in this regard, which were, however, still short of what the Group thought would give the right level of comfort. It maintained convinced, 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." (TNC 28 January and 1 February 2002, WTO, TN/C/M/1)
These views were also voiced by the Like Minded Group (Cuba, Dominican Republic, Honduras, India, Indonesia, Jamaica, Kenya, Malaysia, Pakistan, Sri Lanka, Tanzania, Uganda and Zimbabwe) in its position paper on the role of Chairs and the negotiating process. In it, they 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." (WTO, TN/C/W/2 29 January 2002)
DEVELOPING COUNTRIES’ COMPLAINTS ABOUT PRE-CANCUN CHAIRPERSONS
In the current frenzy of consultations organized by ‘Friends of the Chair’, developing country negotiators, if caught with a minute to spare, have many horror stories to tell of the current negotiating process and the ways in which chairs are abusing their positions.
Trade Facilitation
One negotiator related a meeting which took place on 8 July on trade facilitation. It was yet another informal ‘heads of delegations’ meeting (where all are invited but only some can attend since the proliferation of such meetings in recent weeks have 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 who is facilitating the discussions concluded that from the way discussions are going, in his judgment, consensus on agreement to launch negotiations in trade facilitation is just round the corner.
He was clearly disregarding the fact that just two weeks before, African Union (AU) trade ministers had declared on the subject of the Singapore issues – of which trade facilitation is 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" (Grand Baie Ministerial Declaration on the Fifth Ministerial Conference of the WTO, 20 June 2003).
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 in trade facilitation and have been very vocal about this in the consultations and that he did not see how the Chair could give a factual report without capturing these views.
The EC representative immediately countered Pakistan, saying that Pakistan was misrepresenting the developing countries and that many developing countries are ready to take on rules. As he was speaking, the representative of Costa Rica raised the flag and the EC spokesperson immediately added that he could see Costa Rica raising its flag to support his view.
A delegate from India intervened at this point, saying that India agreed with Pakistan’s assessment of the situation, 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.
Agriculture
In Doha, developing countries were promised that special and differential treatment (S&D) provisions would be strengthened, ‘making them more precise, effective and operational’. Unfortunately, deadlines for these decisions have lapsed. Currently, four S&D provisions have been referred back to the agriculture committee for decision. In the Agriculture Special Session on 18 July, Harbinson (currently chef de cabinet in the Secretariat, and also Chair of the Agriculture Special Session) said that he had prepared the report to the General Council (GC) – due to meet on 24 July – on those four issues, and he would submit it to the council his own responsibility. This caused some commotion in the meeting. Delegates following S&D reported that they have had only one meeting on these four agriculture S&D issues. Their comments made at that meeting were thus preliminary, and Harbinson had promised more meetings at a later date. These meetings never took place. On 18 July, following Harbinson’s announcement of his impending report to the GC on these S&D articles, he was questioned on what basis he was preparing his report, since he had met with members only once on these issues.
Given the concerns expressed, Harbinson read out (but did not distribute) the text he had prepared on those four issues.
According to one delegate, his report was very problematic. The African group had submitted a proposal on Article 6.2 (S&D) and that proposal was missing in Harbinson’s verbal report. Harbinson’s reasoning was that their proposal was already part of the on-going agriculture negotiations. This reasoning was not acceptable to African delegations.
There was also an article on sanitary and phytosanitary measures (SPS) which developing countries had suggested, asking that the SPS Agreement should not be used as a protectionist barrier. Developing countries (African Group, Venezuela and others) want this issue dealt with within the Agreement on Agriculture (in article 14, which makes a reference to the SPS agreement). Developed countries’ position is that this should be dealt with in the SPS Agreement. In Harbinson’s verbal report, it had apparently been decided that the issue should be discussed in the SPS committee!
Several delegations immediately took the floor and said that the entire process (and substantive outcome) was unfair, that the Harbinson’s proposal should be properly circulated to members and that they should have the opportunity to comment on it before he submits it to the General Council (on 24 July).
After this and other such experiences, delegates in Geneva are convinced that the process is going from bad to worse. In the area of agriculture, many are also extremely concerned. After two and the half years of dealing with Harbinson’s style of chairing (as chair of the general council in 2001, and from 2002-2003 as chair of agriculture), there is little faith that their views will be represented in his ‘own responsibility’ reports. In the last Special Session, (18 July), Harbinson promised that he was preparing a draft of the modalities on agriculture for ministers to agree on in Cancun. Questions are being raised on where his ‘own responsibility’ modalities would be pitched given that there is no consensus on the controversial agriculture issues. What kind of political games will be played so that the weaker members will not rise-up and revolt (as they did in Seattle)?
One delegate, so disgusted by the current state of affairs said, "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 Director General as the Chair of the TNC), developing countries attained some procedural guidelines. Though it still falls short of what they wanted, one of the ‘principles and practices’ the TNC adopted was as follows:
‘In their regular reporting to overseeing bodies, Chairpersons should reflect consensus, or where this is not possible, different positions on issues’ (WTO, TN/C/M/1 28 Jan and 1 Feb 2002).
His delegation will use this article to pin down chairs if they attempt to overstep their powers and submit a non-consensus document to the Cancun Ministerial.
INFORMALS, INFORMALS AND MORE INFORMALS!
The other major problem with the current process is that the preparatory meetings for Cancun are mainly taking place in informal heads of delegations (HODs) meetings. All informal meetings in the WTO are unrecorded. The reason given by the developed countries is that formal, recorded meetings are not conducive for frank and open discussions.
There are, however, grave political implications for developing country members. If chairs continue their shenanigans, such as putting forward clean texts which do not represent many countries’ positions, minutes of meetings help the politically weaker to at a later date justify their inability to accept these chair’s texts.
This is very important in an institution where, as the Ministerial is approaching and the blaming game is increasing, blame is put on developing countries 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/ will be branded as ‘not being constructive’.
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, EU trade commissioner Pascal Lamy or US trade representative Robert Zoellick may tell developing country ministers that there is little disagreement on a certain issue (for example, trade facilitation) when, in fact, much apprehension and outright disagreement may have been expressed in informal, unrecorded meetings in Geneva.
IS A SEATTLE II SCENARIO BAD FOR DEVELOPING COUNTRIES?
Even as developed countries load up the Cancun agenda by insisting on starting negotiations in new areas (such as investment, competition 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 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, from its major trading partners.
But is a Seattle II scenario a bad thing? The developing world is right now being forced to liberalise 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 things, the WTO is rules-based and democratic. But in reality, it is putting in place rules that are skewed against developing countries interests, and that are rammed through using high-handed tactics and outright exclusion, coupled with backroom bullying, blackmail (such as threats of stopping aid and loans) and bribery (offers of technical assistance).
* Aileen Kwa is a policy analyst with Focus on the Global South, a Bangkok-based policy institute. She is author of ‘Power Politics in the WTO’ and co-author of forthcoming book, ‘Behind the Scenes at the WTO: The Real World of International Trade Negotiations’. She can be contacted at [email protected]
