MEMORANDUM ON THE NEED TO IMPROVE
INTERNAL TRANSPARENCY
AND PARTICIPATION IN THE WTO
EXECUTIVE SUMMARY
Background
This
Memorandum highlights the serious problems of the lack of internal
transparency and the lack of participation of developing countries in
decision-making processes in the World Trade Organisation.
Our
organisations have for several years been involved in WTO issues and
the activities of the WTO and we have been able to observe at close
range the WTO's operations, methods of work and decision-making
procedures. Over the years we have become increasingly concerned
about the lack of proper rules of procedures and the lack of
transparency and as well as the lack of participation or exclusion of
a majority of Members in decision making processes.
Although
these shortcomings have been pointed out and highlighted by WTO
Members, NGOs and the media, and although reforms have been talked
about and promised many times through the years, the situation has
not improved. It has in fact worsened.
This
lack of internal transparency, participation and democracy is
appalling in such an important international organisation whose
decisions and actions have such far reaching effects on the lives of
billions of people and the environment upon which they depend. It is
even more ironic and inexcusable in an agency that prides itself for
being a "rules-based organisation" and for championing the
principles of "transparency, non-discrimination and procedural
fairness."
The
Memorandum highlights some of the significant problems in the WTO
internal processes under three categories: general problems,
processes before Ministerial Conferences, and processes during
Ministerials.
The
Memorandum also provides several concrete proposals to improve the
decision-making processes, again according to the categories of
general, before and during Ministerial Conferences.
Without
such reforms of the procedures and practices relating to internal
transparency and participation, there can be little hope of reforms
to the existing imbalances in many of the rules of the WTO which are
adversely impacting on the lives of people around the world. Worse,
new rules that are detrimental to people and the environment may be
introduced.
It
is therefore hoped that these proposals will be seriously considered
and that they be put in effect in the present crucial period before
the Cancun Ministerial and at Cancun itself.
LIST OF PROBLEMS OF DECISION-MAKING
PROCESSES IN WTO
The
Memorandum provides a comprehensive account of the problems in
internal transparency and participation in the WTO decision-making
processes. The following is a listing of the problems.
A. General Problems
The
practice of the consensus system is often unfair to developing
countries.
The
overloaded agenda and too many meetings held simultaneously have put
resource deficient developing countries at a great disadvantage.
Economic
and political pressures are applied on developing countries to
influence their negotiating position.
There
is great difficulty or impossibility to change existing rules, even
if they are imbalanced or damaging.
B. Specific Problems in the Processes
linked to Preparations for Ministerial Conferences
There
is a proliferation of "informal", undocumented and
exclusive meetings, amounting to lack of transparency and inability
of many countries to participate.
Informal
"heads of delegations" meetings are replacing General
Council meetings.
Many
meetings are held at short notice.
Documents
are often not distributed in time.
Some
important documents not available in various languages.
WTO
discussions and negotiations have increasingly become "chair
driven" (driven by the Chairs of formal or informal groups)
instead of "member driven."
There
is inadequate procedure for selection of and determining the
functions of Chairs in the informal processes.
The
divergence of views among members is often ignored through "clean"
draft texts and declarations.
Not
enough time is given for discussing drafts.
There
is a major problem of transmission to the Ministerial Conference of
drafts that are not approved by members.
The
neutrality of the secretariat is sometimes not maintained.
The
holding and proliferation of "Mini Ministerial" meetings
involving only a few countries is creating a disguised unelected
"steering group".
C. Specific Problems with Processes
during Ministerial Conferences
The
lack of a functional, operative general committee or assembly that
functions as a decision-making forum throughout the Conference.
The
misuse of the opening ceremony for obtaining approvals for important
substantive decisions.
The
undemocratic adoption of the Draft Declaration as the basis for
conference negotiations.
The
undemocratic selection of chairpersons or so-called "friends of
the chair" to conduct negotiations on key issues.
The
holding of "informal", undocumented and exclusive meetings
that undermine transparency and participation.
The
views of many members are ignored and not reflected or not properly
reflected in the negotiating texts.
The
operating of the "green room" process excludes many
members from meetings and decision-making.
Members
are also excluded from major decisions of an administrative nature,
e.g. extending the conference for an extra day.
The
holding of an exclusive "last night" marathon meeting.
Untransparent
production of the new and revised Ministerial Declaration drafts.
Proposals
by members for amending the draft declaration are ignored.
PROPOSALS FOR REFORMS
Changes
to the WTO process are long overdue. Many organisations (at
international, regional, or national levels) have rules and
procedures that enable fair participation of the membership. It is
not so difficult to envisage that the WTO also establish and practice
similarly fair rules and procedures.
Towards
this end, we propose the following:
A. General Proposals
The
consensus system should be applied in a manner that fully respects
the views of developing country members.
The
views of every member must be respected in a decision involving
consensus and explicit consensus, especially in the case of
important issues.
The
WTO should adopt a realistic agenda and work schedule that is fair
especially for smaller delegations.
Developing
countries should not be subjected to economic and political pressure
relating to negotiations.
Decisions
should not be made until all members are technically ready.
Developed
countries should be ready to resolve development issues (including
implementation and special and differential treatment) without
exacting a new price.
B. Proposals for Improving Processes
linked to Preparations for Ministerial Conferences
Meetings,
including "informal consultations", should be open to all
members. The schedule of all meetings should also be made known to
all members.
There
should be more formal meetings of the General Council and the Trade
Negotiations Committee, which should be the main decision-making
fora instead of informal meetings.
Proper
notice should be given for all meetings and documents related to
meetings should be distributed early enough.
There
should be agreed procedures for smaller, issue-based meetings in the
event these meetings are proposed. Authorisation should come from
all members and the meetings should be governed by transparent
rules.
There
should be agreed terms of reference for the roles of chairs of
formal and informal groups. Chairs should facilitate discussions
among members rather than negotiating with members.
Agreed
procedures for drafting of texts are needed. It should not be
assumed that the Chairs would draft the texts. The practice of a
chair producing draft text "under my personal responsibility"
should be replaced by drafts approved by all members.
There
should be a fair reflection of diverse views in texts.
Adequate
time should be given to members to consider and discuss texts.
The
secretariat must maintain neutrality.
The
holding of "Mini Ministerials" should cease.
C. Proposals for improving processes
during ministerial conferences
The
Opening Ceremony should be only ceremonial in nature and it should
not adopt decisions on business matters.
A
committee of all members to coordinate negotiations and discussions
should be the main decision-making forum and which should operate
regularly (meeting at least once daily) throughout the conference.
The
agenda, work programme and the draft declaration and other texts
used as the basis for negotiations should be adopted by members at
the first business meeting.
Members
(not the conference chairman) should appoint the chairs and
facilitators to conduct discussions and determine their role and
terms of reference.
All
meetings should be inclusive and transparent, minutes should be kept
and subject to members' approval.
The
drafting of texts and decisions should be done in a transparent and
inclusive manner and texts distributed to all. Texts should fairly
reflect the divergence of views, if any, among members.
The
system of holding "Green Room" exclusive meetings should
be stopped.
There
should be proper rules and procedures for smaller issue-based
meetings, which should be open to all interested members.
Authorisation should come from members who should also receive
reports as soon as possible.
Proposals
for the extension of the conference, amendment of agenda and other
process issues should be decided on by all members.
The
neutrality and impartiality of the Secretariat should be observed
during Ministerials.
MEMORANDUM ON THE NEED TO IMPROVE
INTERNAL TRANSPARENCY
AND PARTICIPATION IN THE WTO
Prepared
by:
The
Third World Network
Oxfam International
Public Services
International
WWF International
The Center for International
Environmental Law
Focus on the Global South
The Institute for
Agriculture and Trade Policy
The Africa Trade Network
The
International Gender and Trade Network
The Tebtebba International
Centre for Indigenous Peoples' Rights
Submitted
to:
The
Director General, WTO
Minister of Trade, Mexico and Chairperson,
WTO Fifth Ministerial Conference
Chairman, General Council,
WTO
Chairman, Trade Negotiations Committee, WTO
Ministers of
Trade and Commerce, Member States, WTO
Permanent Representatives
of Member States, WTO
13
July 2003
MEMORANDUM ON THE NEED TO IMPROVE
INTERNAL TRANSPARENCY AND PARTICIPATION IN THE WTO
PART I. BACKGROUND
1.
Through this Memorandum, several non-governmental organisations and
civil society groups wish to highlight the serious problems of the
lack of internal transparency and the lack of participation of
developing countries in decision-making processes in the World Trade
Organisation.
2.
Among the organisations launching this initiative are the Third World
Network, Oxfam International, Public Services International, WWF
International, the Center for International Environmental Law, Focus
on the Global South, the Institute for Agriculture and Trade Policy,
the Africa Trade Network, the International Gender and Trade Network,
and the Tebtebba International Centre for Indigenous Peoples' Rights.
3.
Our organisations have for several years been involved in WTO issues
and in the activities of the WTO in Geneva and with policy makers in
the capitals. We have thus been able to observe at close range the
WTO's operations, methods of work and decision-making procedures.
4.
Over the years we have become increasingly concerned about the lack
of proper rules of procedures and the lack of transparency and as
well as the lack of participation or exclusion of a majority of
Members in decision making processes.
5.
Although these shortcomings have been pointed out and highlighted by
WTO Members, NGOs and the media, and even admitted by previous high
officials such as a former Director General and former Trade
Ministers, and although reforms have been talked about and promised
many times through the years, the situation has not improved. It has
in fact worsened.
6.
This lack of internal transparency, participation and democracy is
appalling in such an important international organisation whose
decisions and actions have such far reaching effects on the lives of
billions of people and the environment upon which they depend. It is
even more ironic and inexcusable in an agency that prides itself for
being a "rules-based organisation" and for championing the
principles of "transparency, non-discrimination and procedural
fairness."
PART II: IMBALANCES IN RULES AND
SUBSTANCE ARE LINKED TO UNDEMOCRATIC PROCESSES
7.
Our organisations have been critical of many of the rules developed
in the WTO which we believe to be against the interests of developing
countries and detrimental to the rights of local communities, small
farmers, workers, consumers, women, indigenous people, and to the
environment. We had high expectations when some developing country
Members took joint initiatives to correct the imbalances and the
defective rules, such as resolving implementation-related issues and
strengthening special and differential treatment. But we then
witnessed how these commendable efforts have yielded hardly any
effective results after years of endless discussions. We are also
very critical of proposals and pressures to introduce new issues into
the WTO even when many developing country Members are either opposed
to or unprepared to begin negotiations. We believe the proposed new
agreements will be damaging to development, to the environment, to
working people and to vulnerable groups including the poor and women.
8.
The rules of WTO have a tremendous impact on the lives of people all
over the world. This is why it is so crucial that the correct
decisions are made in the WTO.
9.
We now believe that original imbalances in the WTO rules, the failure
so far of attempts to reform them, the many missed deadlines after
Doha on issues of importance to developing countries, the
unsatisfactory content and progress of current negotiations on
services, agriculture and industrial products, are in large part
linked to the non-transparent and undemocratic decision-making
processes in the WTO.
10.
These processes are weighted against and work against the developing
countries that form the great majority of the Membership. Unless
these processes are changed, further initiatives and attempts to
reform the existing rules, and to have fair outcomes in current and
future negotiations, will fail.
11.
It would be difficult to exaggerate the serious adverse consequences
if governments fail to act. Hundreds of millions of people's lives
and livelihoods are already damaged by the dumping of agricultural
products by rich countries in world markets, which is facilitated by
the agriculture agreement and the high prices of medicines and other
consumer items due to the TRIPS agreement. Reforms to the agriculture
and TRIPS agreements, to name just two, are urgently needed. The WTO
needs to take stock and change tracks to make sustainable development
- rather than a particular economic orthodoxy - its central goal.
12.
The key to the needed changes in the content and substance of the
WTO's rules and policies is the reform of its decision-making
processes. Indeed, the problems related to process in the WTO are
acute, and have undermined the WTO's credibility. Unless there are
appropriate changes to both substance and process in the WTO, its
legitimacy and credibility in the eyes of its main stakeholders and
constituencies will sink even further.
PART III: LIST OF PROBLEMS OF LACK OF
TRANSPARENCY AND PARTICIPATION AND IMBALANCES IN DECISION-MAKING
PROCESSES
13.
The following is illustrative of what is presently wrong with the
WTO's processes:
A. General
14.
Unfair Practice of the Consensus System. The practice in the WTO is
that decisions are made by "consensus." This may at first
glance seem to be "democratic." The problem is that, in
practice, consensus often has a double-standard meaning. When the
major developed countries agree among themselves, an emerging
consensus is said to exist, and all others are asked to "join
the consensus." Those countries that do not agree are often cast
in an unfavourable light, and thus there is pressure for all
countries to conform to the position of the major developed
countries. On the other hand, when a majority of countries agree, but
one or a few of the major developed countries do not, a consensus is
said not to exist.
15.
Overloaded Agenda and Too Many Meetings put resource deficient
Developing Countries at a disadvantage. There is a very heavy
workload and the pace of negotiations is punishing particularly for
developing country missions with less capacity and resources. The
agenda is too full, and too many meetings are held simultaneously.
The developing countries, which have small delegations, are unable to
cope and are at grave disadvantage: (i) because they cannot
participate effectively; (ii) they are counted as part of the
consensus if they are not physically present to air their views. In
addition, many developing country members, as well as observer
countries and some of those in the process of accession have no
permanent mission in Geneva, so they cannot take part in negotiations
at all.
16.
Political Pressures applied on Developing Countries. Developing
countries are subjected to pressures from developed countries,
including the use of leverage outside of the WTO. Those countries
taking positions that the powerful countries do not like can be
subjected to pressures or incentives linked to bilateral aid,
IMF-World Bank loans, and more political issues. Developing country
diplomats who are viewed to be too "effective" have been
known to be removed from their Geneva post after some major
developed-country members in the capitals lodged complaints.
17.
Difficulties or Impossibility of Changing Rules. Due to the consensus
principle and the way it is currently used, it is very difficult,
indeed almost impossible, to change a rule in the WTO once it is
made, unless the major developed countries propose the change or
support it. It would be very hard for developing countries to succeed
in changing rules to their favour, as this would be opposed by at
least some of the developed countries. This has proved to be
difficult and onerous for developing countries since many rules and
agreements at the Uruguay Round were formulated and adopted without
the informed participation of many developing countries. Many
countries signed on to agreements such as those dealing with
agriculture and intellectual property without adequately appreciating
their technicalities or realising their implications.
B. Problems in the Processes linked
to preparations for Ministerial Conferences
18.
All the above points apply but the situation is even worse during the
preparatory process for Ministerial Conferences, where major
decisions are taken.
19.
"Informal", Undocumented and Exclusive Meetings. Many, even
most, meetings are held in "informal" mode, where minutes
are not taken, thus adding to their non-transparent nature. Many of
these meetings are not announced to all the members, only a few
countries are invited to them, and most delegations do not know what
meetings are taking place or what was decided in them. No report of
the proceedings is made available to members who were unable, or not
invited, to attend.
20.
Informal "heads of delegations" meetings replacing General
Council meetings. There are few formal meetings of the General
Council (where minutes are published) as the Ministerial Conference
approaches. Instead, "informal heads of delegations"
meetings are held, to which only very few officials per country are
invited. Minutes of these meetings are not published or confirmed,
thus adding to the lack of transparency.
21.
Meetings held at short notice. Meetings are often held at short
notice. For informal meetings in small groups, delegations are often
given only a few hours' notice, and developing countries find it
difficult or impossible to attend at such short notice especially
since other meetings are going on.
22.
Documents not distributed in time. Documents related to meetings are
not distributed early enough for delegations (especially small ones)
to consider them properly or send back to capitals for views and
instructions.
23.
Important documents not available in various languages. Moreover,
some documents are in English only. This applies especially to
"informal" WTO documents (those carrying a JOB number,
drafts of proposed language for texts and decisions, Chairmen's
proposed or draft reports, etc). Thus, several countries are unable
to adequately comprehend the documents, and are unable to send the
content to the officials in capitals in a language, which they use.
24.
WTO discussions, negotiations becoming Chair driven instead of Member
driven. As seen in the preparatory period before Doha and as
practically institutionalised during the Cancun preparatory process
the consultations on issues are increasingly held by the Chairman of
the group (or the General Council Chairman) on a bilateral basis or
with a small number of delegations. Many countries are excluded. The
negotiations are increasingly between delegations and the Chairman,
when the negotiations should be among the Members themselves. This
results in members negotiating with Chairs in consultations where
records are not made available, rather than amongst themselves.
25.
No Formal Selection procedure or roles of Chairs. The present
practice, especially in the Cancun preparatory process, also gives
unprecedented powers to individuals as Chairs who have not been
properly elected by the membership and who have no defined limits to
their roles as chairs. Chairs emerge with their own understanding of
various consultations without the membership being able to cross
check whether the Chair's report fully integrates and faithfully
reflects all views expressed as these consultations remain informal.
26.
Divergence of views ignored through "clean" draft texts and
Declarations. The views and positions of many countries are not
reflected, or not reflected adequately, in the draft elements and
decisions, or in the draft Declaration that is taken to the
Ministerial Conference. Before Seattle, the views of different
delegations were placed together in the same draft. It was
transparent where there were differences of positions and easier for
a country to identify its own position. Thus the playing field was
relatively level as negotiations were carried out on the basis of the
different views. However, before and at Doha, the draft text was
mainly a "clean document" (without brackets) reflecting the
Chairman's view, and on many issues the positions of many developing
countries were not reflected. This puts at a great disadvantage those
countries whose views are not represented in the Chairman's texts.
The mere lack of reflection of divergence of views makes it harder
for countries to voice divergent views.
27.
Not enough time for discussing drafts. Even though there is no
consensus on a draft Declaration or other document, and indeed even
if there are serious disagreements on many parts of the draft, the
Members are not given enough time to discuss it and to narrow their
differences. For example, during the end phase of Geneva preparatory
process for the Doha Ministerial in 2001, there were only a few days
for members to consider the revised draft of the Doha Ministerial
Declaration and when many members asked that changes be made or at
least that their divergent views be recorded and transmitted to Doha,
this request was not accepted on the ground that there was no time
left as the Ministerial would start in a few days.
28.
Transmission to Ministerial Conference of Drafts that are not
approved by Members. The new and appalling practice in WTO is to
transmit the draft Declaration or other texts on to the Ministerial
Conference as the basis for negotiations there, even though the views
of many delegations are not reflected, nor are the differences noted
within the draft or on a separate explanatory document. Even though
many Members express their frustration, and do not give permission
for the draft to be transmitted to the Ministerial Conference, the
Chairman of the General Council and the Director General transmit the
controversial draft "on their personal responsibility" to
the Ministerial Conference. This is what happened before the Doha
conference. The transmission of such a draft that disguises the
divergence of views makes it difficult for Ministers from developing
countries to understand and analyse which views are being held by
which countries and also makes it more difficult for them to defend
their own position, especially since they may not have the same grasp
of technical details as their diplomats and experts.
29.
Neutrality of the Secretariat. The Secretariat (and especially its
Director General) of any membership organisation is supposed to be
neutral and impartial, especially if the Members are split on
important issues. Yet, before Doha, the then Director General was
actively and personally campaigning for the launch of negotiations of
the Singapore issues, even though a large number of developing
countries were against the negotiation of the new issues. These
actions seriously undermined the impartiality of the secretariat.
Before the Singapore Ministerial, the then Director General pushed
for the introduction of an investment agreement in the WTO, despite
strong opposition from many developing countries. These actions by
key WTO officials placed developing countries that were opposed to
the "new issues" at a grave disadvantage.
30.
"Mini Ministerials" creating a disguised unelected
"steering group." There is also a very disturbing trend of
some countries organising so-called "Mini-Ministerials" to
which only the major developed countries, a few developing countries,
and senior WTO Secretariat officials are invited. There is an
increasing tendency for business (discussion on key issues) to be
carried out through these Mini-Ministerials, thus perpetuating a
"super green room" system throughout the year. In effect
this creates a non-elected steering committee in disguise and in the
process excludes the vast majority of the membership. This
establishment of a de facto parallel decision-making system is highly
discriminatory against the majority of members who are not invited
and undermines the multilateral nature of the trading system.
C. Problems with Processes during
Ministerial Conferences
31.
Lack of a functional, operative general assembly. There is no formal
"general assembly" that operates throughout the
Ministerials. There are formal opening and closing plenary sessions
but in between these only informal meetings are held, with no minutes
published or adopted. Thus there is a lack of transparency and the
lack of a forum for decision-making where Members can officially make
their views known, with their views being officially recorded.
32.
Misuse of the Opening Ceremony for obtaining approvals for
Conference. Opening ceremonies of conferences are supposed to be
ceremonial in nature. Important decisions are normally taken at the
first business session of conferences. At Doha, the ceremonial
Opening Ceremony was made use of to adopt the controversial and
disputed Draft Ministerial Declaration (which had not been approved
by the General Council for transmission to Doha, and which many
Members had requested not to be made the basis for negotiations in
Doha) as the basis for negotiations at the Conference. There was no
opportunity for Members to discuss whether the text should form the
basis for negotiations.
33.
Undemocratic adoption of Draft Declaration as basis for Conference
negotiation. Raising the matter of the Draft Declaration at the
Opening ceremony in Doha means that the WTO Ministerial Conferences
do not have a proper procedure for adoption of texts to be used as
the basis of negotiations at the Conference. In Doha, Members were
not given the opportunity to comment on them or to suggest revisions
or alternatives. In this manner, the draft Declaration that had been
so controversial and so contested by Members in Geneva was "adopted"
in Doha. This lack of a procedure to adopt the texts for negotiations
is a major process flaw in Ministerial Conferences.
34.
Undemocratic selection of Chairpersons or so-called Friends of the
Chair. In Doha, the conference Chairman personally appointed "Friends
of the Chair" to conduct negotiations on specific issues that
were contentious. There had been no prior discussion or decision by
the General Council or by the Ministerial Conference to give the
Chairman the authority to personally select the facilitators for the
issues. The appointment by the Chairman (instead of election by
Members) of important officials of the Conference who play such a key
function in directing or guiding negotiations on critical issues that
are unresolved, is a major undemocratic feature of the WTO system. At
other international Conferences (e.g. the UN World Conferences), the
chairpersons of negotiating groups are elected through an open and
transparent process, with each region being able to make proposals
for candidates, etc. In the WTO, the criteria with which the
facilitators were chosen were not made known. At Doha, those who were
appointed 'Friends of the Chair' were from the same grouping of
countries that supported the launching of a New Round, including
negotiations on new issues, and members that did not have the same
views (e.g. The Like Minded Group of Developing Countries) were not
chosen. Even though several Members at the first plenary meeting
questioned the Chairman's appointment, the Chairman ignored the
criticisms and proceeded with the appointments and the work of the
groups.
35.
Undocumented and Closed Meetings that undermine transparency.
"Informal consultations" were held, led by the
facilitators, during the Doha conference. Records of these informal
meetings were either not kept, or if kept, they were not made
available to the Members or the public. Most meetings were not
open-ended. The schedule of open-ended meetings (to which everyone is
invited) was usually not known within proper time. The whole
scheduling of meetings was unpredictable.
36.
Views of Members ignored and not reflected in the negotiating texts.
Although there was the appearance that Members were being consulted,
the views of large numbers of countries were not reflected (or not
adequately reflected) in the new drafts of the main Ministerial
Declaration that were produced in Doha, and especially in the
sections on the Singapore issues. This is very unlike the normal
procedures in UN conferences, where drafting is done openly by
Members, with all countries allowed to participate, and with the text
containing the different views available to all. More recently, the
different proposals and positions and the process of amendments have
been projected on a big screen in the negotiating room so that
everyone can clearly follow the negotiations. In the case of WTO
Ministerial conferences, as most recently seen in Doha, the drafting
of WTO texts is non-transparent. Indeed, it is not known to Members,
let alone the public, how the texts were drafted, or by whom, and on
whose authority.
37.
"Green Room" process excludes Members from meetings. In
Singapore and at Seattle, almost all the negotiations on the draft
Declaration were carried out in the so-called "Green Room"
exclusive process, where only a few countries were invited and
allowed to participate. Security guards stood outside the meeting
rooms to prevent uninvited Members, including Ministers, from
entering. Shouting matches between guards and "uninvited"
officials could be observed. Most Ministers and officials were shut
out of the process and were left "languishing in the corridors,
canteens and in hotel rooms" in the colourful language of one
diplomat. At and after Singapore, the then Director General of the
Secretariat promised this exclusionary process would never happen
again. Yet it re-emerged in Seattle. The entire process was
non-inclusive and indeed seriously exclusionary and discriminatory.
It ran completely against the most-favoured nation (MFN) treatment
sub-principle that is so prominent in the GATT/WTO non-discrimination
principle. The process was also extremely untransparent. Up to now,
it has not been revealed who made the decision to adopt the "Green
Room" process, who selected the invited delegations, on what
basis, and what were the legal basis or rules of procedure (if any)
for these exclusive meetings.
38.
Members excluded from major decisions, e.g. extending the Conference.
At Doha, when it was clear that a majority of developing countries
were against the launch of negotiations on the Singapore Issues, a
decision was made to extend the conference by one day. The decision
for extension was not made by the Members, as no proposal for
extension was put before the Members and indeed there was not even a
formal Assembly or Committee in which such a proposal could be put
forward and a decision taken. Up to now it is not clear who made the
decision, nor under which procedure. Many Ministers, who had booked
their flights out, did leave as scheduled, as they did not have
advance knowledge nor had their views been sought on the matter, and
they missed the important last (extended) day's events.
39.
Exclusive "last night" marathon meetings. On the final
night at Doha, a marathon "Green Room" exclusive meeting
was held involving a small number of countries. Once again, it is not
clear who chose and invited the participants, on what criteria and
legal and procedural basis. Again, Members who were not selected were
not allowed into the room and some were stopped by security guards.
During the meeting, the Director General played an important and
partial role. Moreover, new drafts of texts were brought in for
consideration, some (reportedly the section on environment) at around
3am. Again, the whole process was non-transparent, non-inclusive and
discriminatory. Some of the senior Secretariat staff again played a
critical role in facilitating and sometimes in leading the process.
40.
Untransparent production of the new Declaration draft. A new draft of
the main Declaration arrived on the last (extended) day in Doha,
which reflected even less the views of a large number of developing
countries, especially on the Singapore issues. Many ministers were
not even aware on 14th November 2001 (the final day) afternoon, when
they adopted the declaration in the plenary, that fundamental changes
have been made to the earlier draft that had been brought out on 13th
November.
41.
Proposals for amending the Draft Declaration ignored. At the last
"informal" plenary session, many countries proposed changes
but due to the lateness of the hour ('the planes will leave in a few
hours"), the pressure of time became an additional factor why
the suggested changes to the declaration were not accommodated. At
the end, an unsatisfactory compromise was reached in which the
Conference Chairman read an understanding on the Singapore issues
regarding the nature of an explicit consensus. Members continue to
dispute one another's interpretation of what an explicit consensus
requires.
PART IV: OUR PROPOSALS
42.
From the above experience, it is clear that lack of proper
procedures, the proliferation of non-transparent "informal
meetings", the way important decisions and declarations are
drafted and produced for adoption, the Green Room process, etc, all
add up to a most unacceptable process that is top-down, authoritarian
and undemocratic. Ironically the supposed principles which the WTO is
supposed to uphold in its rules -- transparency, non-discrimination,
procedural fairness - are grossly violated in its processes.
43.
It is this process that underlies much of the decision-making and
that contributes to the many unbalanced and inappropriate rules and
agreements of the WTO.
44.
Changes to the WTO process are long overdue. Many organisations (at
international, regional, or national levels) have rules and
procedures that enable fair participation of the membership. It is
not so difficult to envisage that the WTO also establish and practice
similarly fair rules and procedures.
45.
Towards this end, the following are among our proposals:
A. General
46.
The consensus system should respect the views of developing country
Members. The consensus system should not be made use of by major
developed countries as a "veto" against proposals, which
have the support of a majority of the developing country Members.
Also, when proposals are put forward by the major developed countries
and these are not agreed to by some developing countries, the major
countries should accept that these other countries are merely
exercising their right under the consensus system, and not seek to
portray them as some kind of "enemies" of the multilateral
system which are "blocking consensus."
47.
Views of every Member must be respected in a decision involving
consensus and explicit consensus. In the case of important issues,
especially where it has been specified by Members that a consensus or
an explicit consensus is required for a decision to be adopted, the
views of each Member must be recognised and respected, including the
right not to agree to a proposed decision.
48.
Adopt a realistic agenda and work schedule that is fair especially
for smaller delegations. The WTO should not take on a workload that
is too heavy for small developing countries to handle. Negotiations
should not be scheduled for too rapid a pace. There should not be
more than two meetings going on at the same time, to enable small
delegations to participate.
49.
Developing countries should not be subjected to economic and
political pressure. Developed countries should not use pressure (some
of which amounts to bullying and blackmail) on developing countries
to "pull them into line" with their positions. Nor should
they use trade preferences, bilateral aid, military aid, the
dependence of developing countries on loans from the international
financial institutions, as points of leverage to get the developing
countries to agree.
50.
Decisions should not be made until all Members are technically ready.
Decisions and agreements should not be made until and unless all
Members, especially the developing countries, are able to understand
the technicalities of the issues and the implications for their
economies and societies.
51.
Developed countries should be ready to resolve development issues
without exacting a new price. Developed countries should stop taking
the attitude that existing rules and agreements cannot or should not
be changed unless other parties are willing to pay a new price. They
should be sympathetic to the requests for amending and clarifying the
agreements in ways that are in line with the interests and needs of
developing countries. They should therefore be more forthcoming in
accepting effective solutions to implementation issues and special
and differential treatment proposals.
B. Processes linked to preparations
for Ministerial Conferences
52.
Meetings and schedules for meetings should be open. All Members
should know all the meetings, and Members should participate in and
have knowledge of the entire schedule of meetings, including agenda,
participants and outcomes. Meetings should all be official, with
minutes taken down and circulated to Members for amendments or
confirmation.
53.
More formal meetings of General Council and TNC. There should be many
more formal meetings of the General Council and the Trade Negotiating
Committee, which are open to all Members. These should become the
main decision-making fora instead of the non-transparent informal
meetings.
54.
Proper notice of meetings and documents distribution. Proper notice
should be given for all meetings and documents related to meetings
should be distributed early enough for full consideration by all
Members.
55.
Procedures for smaller, issue-based meetings. In the event that
smaller issue-based meetings are proposed to be held to discuss or
resolve certain issues, authorisation to hold these meetings should
come from all members. Such meetings should also be governed by rules
to ensure transparency and fairness. The rules could include the
following: (a) the authority wishing to convene a group meeting
should announce in the plenary that he is convening such a meeting
and indicate the purpose of the meeting, and it should be subject to
plenary approval; (b) the authority should announce the list of
invitees and also announce that any other delegation which feels that
it has a strong interest in the subject matter is also entitled to
attend the group meeting; (c) as early as possible after the meeting,
the authority convening the meeting should report to the plenary the
gist of proceedings/outcome of the meeting; (d) such group meetings
should be designed to facilitate consensus building rather than to
take decisions behind the back of a large number of Members.
56.
Role of Chairs. Terms of reference for the roles of the Chairs of the
various Councils, Committees and formal or "informal"
issue-based groups must be drafted by WTO members. The role of Chairs
should be to facilitate discussions among the Members. The increasing
trend of negotiations being held between delegations and the Chair
should stop, especially since there are no records of what transpires
at these meetings, and all the information resides with the Chair,
who is then given too much power to interpret the situation. The
negotiations should mainly be among Members themselves.
57.
Drafting of texts. It should not be assumed that the Chairs would
draft the texts that then form the basis of negotiations or
discussions. Texts should be drawn up in a transparent and fair
manner by Members. Members must agree on the latest text, which can
contain the different position of the Members. The practice of a
Chair producing a draft text "under my personal responsibility"
should stop.
58.
Fair reflection of diverse views in texts. The views and positions of
different Members should be adequately reflected in the draft
Declaration and in draft elements and decisions. The different views
should be listed out in the same document so each Member's view has
the chance to be part of the negotiated texts. The new custom of
producing "clean texts" by the Chairman makes the process
non-transparent because the differing views are not listed as the
starting point of negotiation.
59.
Proper time required to consider and discuss texts. Members should be
given sufficient time to discuss the drafts and to narrow their
differences. Whatever drafts are submitted to the Ministerial
Conference should be the result of adoption by consensus in the
General Council.
60.
Drafts must fairly reflect different views. If Members are unable to
agree on some parts of a draft Ministerial Declaration or other draft
texts, the contending views can be put in square brackets. The
Ministerial Conference can then decide on the final formulation of
these parts of the texts. This is a common practice in international
conferences, including in the United Nations system. In several major
conferences, including the UN Summits, texts with many "square
brackets" have been sent on to the Summits or Ministerial-level
conferences, and the differences have been resolved at the meetings
with a consensus reached on the texts. The WTO Ministerial
Conferences should be treated no differently.
61.
The Secretariat must maintain neutrality. The Secretariat, and
especially the Director General and other senior officials must be
(and be seen to be) neutral and impartial at all times, especially if
the Members are split on important issues.
62.
Holding of "Mini Ministerials" should cease. Members should
not continue the practice, which is proliferating, of holding
"Mini-Ministerials" before Ministerial Conferences. This
practice discriminates against the vast majority of members that are
not invited. In the meanwhile, decisions taken at such
"Mini-Ministerials" should not be made use of by
participants to influence the multilateral preparatory process in
Geneva.
C. Problems with Processes during
Ministerial Conferences
63.
Opening ceremony should be only ceremonial. The opening ceremony of
the Conference should be only ceremonial in nature. It should not be
used to adopt the Conference agenda or work programme, to adopt
drafts of texts that form the basis of Conference negotiations, or to
affirm the appointment of Conference officials.
64.
General Assembly of Members should operate regularly throughout
Conference. At the start of the Ministerial, a "General
Assembly" or in UN language a "Committee of the Whole"
should be formed, comprising all the Members, to conduct and oversee
discussions and negotiations. This is separate from the official
plenary sessions where Ministerial speeches are made. It should meet
in formal mode regularly, and at least once a day. It should be the
main forum in which decisions, especially the important decisions
regarding negotiations, are made. Records of the meetings should be
circulated promptly and subjected to approval.
65.
Adoption of negotiating drafts. The agenda, work programme and the
draft declaration used as the basis for negotiations, should be
discussed, if necessary amended, and adopted, at the first business
meeting of the whole membership.
66.
Election of chairs and facilitators. The Facilitators or Chairs for
conducting discussions or negotiations of specific issues should be
selected by all the members, and not by the Conference Chairman.
Their role and terms of reference should be specified by all the
Members. They should be accountable to all the members and not only
to the Conference Chairman.
67.
All meetings should be inclusive and transparent. The meetings
organised by the Chairs and Facilitators should be open-ended, and
minutes should be kept and subject to approval of the Members
present. The views of all Members should be transmitted to drafters
of the decisions.
68.
Drafting of texts and decisions should be transparent and inclusive,
and texts distributed to all. The process by which decisions and
texts are drafted should be transparent and participatory, and it
should be decided by all Members, which should be allowed to be
present at meetings where decisions are drafted. The latest drafts of
texts on all issues being discussed should be made available to all
Members who should be kept informed on all issues at all times. These
should also be presented to all Members at official plenary sessions
to be held at least once a day.
69.
Green Room system should cease. The practice of the "Green Room"
system, or exclusive meetings, to which only a few countries are
invited to participate on behalf of all, should be stopped.
70.
Proper rules and procedures for smaller issue-based meetings. In the
event that during a Ministerial Conference it is felt that meetings
should be held to discuss or resolve certain issues, authorisation to
hold these meetings should come from the general assembly of Members.
Such meetings should also be governed by rules to ensure transparency
and fairness. The rules could include the following: (a) the
authority wishing to convene a group meeting should announce in the
plenary that he is convening such a meeting and indicate the purpose
of the meeting, and it should be subject to plenary approval; (b) the
authority should announce the list of invitees and also announce that
any other delegation which feels that it has a strong interest in the
subject matter is also entitled to attend the group meeting; (c) as
early as possible after the meeting, the authority convening the
meeting should report to the plenary the gist of proceedings/outcome
of the meeting. (d) Such group meetings should be designed to
facilitate consensus building rather than to take decisions behind
the back of a large number of Members.
71.
Extension of the Conference and other process decisions. Any proposal
to extend the Ministerial meeting or to amend its agenda should be
decided upon by all the Members in a general assembly or committee of
the whole. Other decisions involving processes of the Conference
should be decided in similar fashion.
72.
Neutrality of Secretariat should be observed. During the Ministerial
Conference, the Secretariat has an important role to play to ensure
that the procedures and the decision-making system are fair, balanced
and allow the developing countries to participate fully. It should
itself take great pains to ensure that it is neutral and impartial
during the Ministerial Conference, and is seen to be so.
Dear Excellency,
Re: MEMORANDUM ON THE NEED TO IMPROVE
INTERNAL TRANSPARENCY AND PARTICIPATION IN THE WTO
We,
the undersigned non-governmental organisations and civil society
groups would like to put forward a Memorandum on the Need to Improve
Internal Transparency and Parpticipation in the WTO.
Through
the Memorandum, we wish to highlight the serious problems of the lack
of internal transparency and the lack of participation of developing
countries in decision-making processes in the World Trade
Organisation.
Our
organisations have for several years been involved in WTO issues and
in the activities of the WTO and we have been able to observe at
close range the WTO's operations, methods of work and decision-making
procedures. Over the years we have become increasingly concerned
about the lack of proper rules of procedures, the lack of
transparency as well as the lack of participation, or the exclusion
of a majority of Members in decision making processes.
Although
these shortcomings have been pointed out and highlighted by WTO
Members, NGOs and the media, and although reforms have been talked
about and promised many times through the years, the situation has
not improved. It has in fact worsened.
This
lack of internal transparency, participation and democracy is
appalling in such an important international organisation whose
decisions and actions have such far reaching effects on the lives of
billions of people and the environment upon which they depend. It is
even more ironic and inexcusable in an agency that prides itself for
being a "rules-based organisation" and for championing the
principles of "transparency, non-discrimination and procedural
fairness."
Our
Memorandum highlights some of the significant problems in the WTO
internal processes under three categories: general, processes before
Ministerial Conferences, and processes during Ministerials. The
Memorandum presents a listing of the problems - and concrete
proposals to improve the decision-making process -- under three
categories: general, processes preparatory to Ministerial
Conferences, and during Ministerials.
We
believe that without such reforms of the procedures and practices
relating to internal transparency and participation, there can be
little hope of reforms to the existing imbalances in many of the
rules of the WTO which are adversely impacting on the lives of people
around the world. Worse, new rules that are detrimental to people and
the environment may be introduced.
We
therefore hope that our proposals will be seriously considered and
that they be put in effect in the present crucial period before the
Cancun Ministerial and at Cancun itself.
Yours
sincerely,
Martin
Khor
Third World Network
121-S Jalan Utama
Penang,
Malaysia
Fax 60-4-2264505
twngeneva@bluewin.ch
Celine
Charveriat
Oxfam
International
celine.charveriat@oxfaminternational.org
Hans
Engelberts
Public Services
International
Hans.Engelberts@world-psi.org
Aimee
Gonzales
WWF International
agonzales@wwfint.org
Steve
Porter
Center for International
Environmental
Law
sporter@ciel.org
Aileen Kwa
Focus on the Global
South
aileenkwa@yahoo.com
Shefali Sharma, Alexandra
Strickner
The Institute for Agriculture and Trade
Policy
astrickner@iatp.org
Tetteh Hormeku
The Africa
Trade Network
thormeku@twnafrica.org
Daniela Perez
Gavidia
The International Gender and Trade
Network
daniela.perez@igtn.org
Victoria
Tauli-Corpuz
Tebtebba Indigenous Peoples' International Centre for
Policy Research and Education
tebtebba@skyinet.net