Since before Doha, EU and US’ cheerleaders at the WTO have been chanting: ‘Habinson, Harbinson, he’s our man. If he can’t do it, nobody can’.
Post-Doha, the chants have only grown louder since the present challenges after Doha require nothing short of the same dosage of pre-Doha ‘maneuverings’ for the enormous and controversial agenda to be pulled through. Yet the US and EU are even more determined, and hence are finding ways for their man to continue with his slick, slippery and unfortunately rather undemocratic strategies of diplomacy.
Stuart Harbinson, currently Hong Kong’s Ambassador to the WTO in Geneva, had chaired the WTO’s General Council in the preparations for the Doha Ministerial, where consensus was elusive, and chances of failure very real indeed, up until the very last moments of the Doha Ministerial. Harbinson was given enormous credit, for the ‘clean’ Doha draft which he had engineered before Doha, without which, the final consensus in Doha would surely have not materialized.
Eagar to ensure the continued use of his ‘skills’, in 2002, he was appointed Chair of the Agriculture negotiations, the most politically sensitive issue at the WTO. (It was not too difficult for the big powers to pull through this appointment, since Stuart Harbinson himself, in the last days of his General Council chairmanship, was the one holding the consultations appointing the chairpersons of various committees, including agriculture!)
About a month ago, it was announced that Supachai, incoming Director General of the WTO from 1 September, has now appointed Harbinson as chef de cabinet in the Director General’s office.
Secretariat Staff Cannot Chair Negotiating Body
The problem at the moment is that there does not seem to be any indication that Harbinson, as chef de cabinet, is going to step down as Chair of the Agriculture Committee Special Session.
In January 2002, when Members were debating the Chairmanship of the WTO’s newly formed Trade Negotiating Committee, the TNC endorsed the principle that appointments to WTO bodies should only be made from among representatives of WTO Members, recognizing that the appointment of the DG ex-officio as TNC Chair was an exception, rather than the rule.
The consultations had been conducted by Harbinson, and the summary he himself read out on 1 February 2002 was as follows:
‘I propose that the TNC appoint the Director-General in an ex-officio capacity to chair the TNC until the deadline of 1 January 2005 established in the Doha Declaration. It is understood that doing so does not create a precedent for the future’.
The WTO legal text itself does not lend support to such an arrangement of Secretariat staff holding an appointment in a negotiating body. Article VI.4 of the Agreement Establishing the WTO states that ‘the Director General and… staff of the Secretariat shall be exclusively international in character…. They shall refrain from any action which might adversely reflect on their position as international officials.’
US, EC and Cairns Group Back Harbinson
While no formal statements have been issued so far, there has been talk that various members of the Like Minded Group are approaching Supachai and are quietly talking to him about why Harbinson should not hold dual positions.
On the other hand, those who want to see agriculture talks moved along and concluded (in their favour), are all for Harbinson staying on as Chair of Agriculture. Some the reasons cited have been that he is after all neutral, and therefore, even if he is a Secretariat staff, it can be excused since his ‘neutrality’ would not create a conflict of interest.
The big powers – US and EU – as well as the Cairns Group of agricultural exporting developed and developing countries do not want a change of Chairmanship in agriculture since intensive talks in the Agriculture Committee have been planned for September. Changing the Chairmanship is likely to set back the timetable by several weeks. More critically, someone at the helm that is less slick than Harbinson could torpedo any chances of agreement in Agriculture, thereby derailing any possibilities of a full fledged new Round to be launched in the next Ministerial in Cancun.
Neutral Or Slick Diplomat?
While those who want Harbinson to continue holding dual posts expound on his neutrality, Harbinson’s track record as Chairperson in the recent past leaves no doubt that he not only non-neutral, but a slick diplomat who appears understanding towards all sides, but produces results which favour the big and powerful Members.
Harbinson’s style is that of ‘compromise’ and ‘balance’. One European diplomat has described Harbinson as having the ‘moral authority’, which Charlene Barshefsky did not have to pull off the Ministerial (in their favour).
Recently, Hong Kong’s South China Morning Post carried an article with Harbinson describing his own style of ‘compromise’ as follows:
‘The whole thing is to construct a balance of interests in which everybody gives something and everybody gets something…’
Small wonder that with this style, he has attained some credibility in the world of pragmatic trade negotiators in Geneva. However, other negotiators from the South, attempting to push for their development priorities to be taken up have been deeply angered and frustrated by Harbinson’s mavericks and marginalisation of their agenda.
One such negotiator had this stinging remark to say of Harbinson, in the beginning of the year, when Harbinson was holding consultations over the Chairs of the Trade Negotiating Committee (TNC). According to him:
‘Harbinson’s consultations involved the big players. He is somebody who says he is consulting and building consensus. He is ‘sympathetic’ to every group. He goes to the LMG and tells them that this is a very good paper. But at the end of it, he brings you the same (original) list, and tells you that this list is what has been acceptable to everybody.’
‘A number of countries made noise that they were not being consulted on the selection of Chairs for the TNC negotiating bodies. There must be more transparency in the consultations. Right now, only Harbinson can tell you what he did. It is like the same person being the accountant and the auditor. You are everything. Even if there is a mistake, you are auditing the books and you don’t see it.’
To the disenfranchised – also the majority in the institution, Harbinson provides a listening ear, but at the end of the day, ignores their concerns. As is the case with Doha, he offers them technical assistance, and strengthening of Special and Differential Treatment provisions – meager carrots in comparison to the concessions they gave away – and which to date are showing their true colours of being only empty promises.
Harbinson’s Pre-Doha Mavericks
Indeed, the mavericks of this smooth diplomat has created some very sticky moments inside WTO corridors:
i) In the run-up to Doha, many developing country delegations were angered by the fact that he ignored the opposition of a large number of countries on the question of including the Singapore Issues as being ripe for negotiations. Despite strong opposition to these issues upon the release of the first draft declaration, he removed the brackets in the second draft implying that there was consensus on eventual negotiations. This put Members who were opposing their inclusion as negotiating subjects, at a serious disadvantage in Doha. Ministers of dissenting countries in Doha were than pressured by the powerful countries into acquiescence.
ii) To further add insult to injury during this critical preparatory phase of negotiations, Harbinson contravened Article IX:1 on decision-making, by submitting to Doha a text, which did not have the consensus of the Membership, but one that was sent ‘on his own responsibility’. Given the opposition he faced, it was agreed that he would attach a covering note to explain the divergences in views. However, the note that was sent to Doha was sorely inadequate. The draft text transmitted disproportionately reflected the views of the EC, US, and their allies, rather than those of a large number of developing countries.
In the words of one African delegate:
‘In fact, the suggestions by developing countries just fizzled out. We gave alternative texts, but we don’t know where they went, but they didn’t find their way to the declaration. We made so many suggestions before Doha, but they were ignored. We were expressing our dissatisfaction, we were expressing our disgust. Yet he went ahead taking the draft to Doha. The onus was left on developing countries to say we don’t want this. If you didn’t want investment and competition, you had to justify why you didn’t want it. But that other side didn’t have to do that because the job had already been done for them in the text.’
iii) Developing country delegates, on reflecting upon the preparatory process towards Doha which Mr. Harbinson chaired, stated that preparatory meetings which took place ‘(fell) short in the areas of transparency and inclusiveness at crucial phases. Many developing countries had been unhappy at being excluded from crucial meetings. In some cases, such exclusion had been despite a specific request to be involved in some meetings’.
Harbinson’s Post-Doha Mavericks
Unfortunately, these problems of lack of neutrality have continued in 2002, during his present Chairmanship of the Committee of Agriculture Special Session.
iv) Harbinson’s 20 June oral report of the first substantive Special Session of the Agriculture Committee held on 17-18 June, received criticism for not fairly reflecting the views that had been expressed during the session.
His oral report made a crucial ‘blunder’ in reporting on Cuba’s statement on trade embargos indicating that the United States may have had some direct input in the drafting of his report. During the Special Session, Cuba had stated that trade embargoes should be prohibited, particularly embargoes against net food-importing developing countries. No delegation had responded to Cuba’s statement. New Zealand had brought up Article XX (on General Exceptions), but this was made before Cuba’s statement and it had not been brought up in connection with Cuba’s point. However, in Harbinson’s report, he cited Cuba’s statement, followed by the sentence: ‘While some other countries also suggested that quantitative restrictions on exports should be prohibited they also made an exception for cases involving UN agreed sanctions or cases under Article XXI of GATT’. Article XXI refers to ‘Security Exceptions’. No delegation had brought up Article XXI. This ‘apparent’ factual error was pointed out by Cuba on 20 June.
Other members, including Australia, Bulgaria, Canada, Brazil, and Bolivia also intervened for different reasons, to express concern that their positions had not been accurately reported. India and Sri Lanka commented that while many delegations had emphasized the need for Special and Differential Treatment, this issue had not received enough prominence in the report.
v) A coalition of developing countries in March 2002 had fought hard to limit the number of Agriculture Special Sessions held this year, citing the problems of limited resources and capacity of small developing country delegations. They also wanted the substantive session on Domestic Supports to be addressed before Market Access. The majors opposed this. As a compromise, the agreement was that Market Access would be held before Domestic Supports, however, both only after the summer break, hence giving developing countries more time to prepare for the crucial negotiations. On 20 June, however, Harbinson announced that an ‘inter-session’ would be held on 29-30 July on Market Access, and another ‘inter-session’ on domestic supports on 5-6 September. By doing so, he rendered futile the fight some Members had put up, and the compromise that had been struck in March to keep the number of sessions limited and for Market Access to be dealt with only in September.
Given such a dubious track record, developing country governments and civil society groups should not be fooled into arguments attempting to justify his ‘neutrality’ and hence allowing Harbinson, once he assumes his appointment in the Secretariat, to also continue to chair the agriculture negotiations.
As a rules-based institution, the WTO should not be seen to be following and flouting rules as and when it is convenient. This will only further delegitimise the institution. Vagueness of rules and procedures works to the disadvantage of the politically weak Members, since it provides space for the powerful to manipulate the institution’s functioning in a manner which serves their interests.
* Aileen Kwa is a Research Associate at Focus on the Global South, a policy research organization. She is based in Geneva and can be contacted at [email protected]