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Mother-of-all escape clause in proposed internal transparency decision

Geneva, 4 Dec (Chakravarthi Raghavan) - If the proposals of the Chair of the General Council to ensure ‘Internal Transparency and Effective Participation’ of members in the Preparatory Process and Organization of Ministerial Conferences, prevail, the manipulative and secretive processes of decision-making of the Seattle and Doha ministerial meetings could be easily put into the shade at the next Ministerial Conference at Cancun.

The proposals of the GC Chair, Amb. Sergio Marchi of Canada, in the form of a draft statement by the Chair of the General Council - Job (02)/197 dated 28 November - was a response to the formal proposals of the like-minded group (LMG) of countries presented to the General Council and discussed at the GC in May 2002, and called for procedures to be agreed upon and set to govern the preparatory processes and the conduct of the Ministerial Conference.

The LMG proposals were in fact no more than the norms that are accepted and prevail at any international or regional meeting of representatives of sovereign states, and which the LMG had put forward in the light of their experiences during the preparatory process to the Ministerial Conference and the Conference itself at Doha, and to ensure that there is no repetition of that process.

When the General Agreement on Tariffs and Trade 1947 was being drawn up at the Preparatory Committee of the Havana Conference and to serve as the commercial policy chapter of the Havana Charter, and was brought into being as a provisional treaty (pending the Havana Charter’s entry into force), it was as a contract among governments, and provided for a number of ‘escape clauses’ from commitments of governments in the contract.

The Marchi draft statement of 28 November, proportionately has more escape clauses than the GATT 1947, or the Marrakesh Treaty and its annexed Agreements of 1994.

After setting out some procedures to be followed at the Ministerial Conference (Part III of the draft), itself couched in a language familiar now to developing countries struggling to ensure ‘implementation’ of promises made to them and to make ‘operational’ the Special and Differential Treatment provisions in the WTO agreements, the Marchi draft text on the organization and conduct of Ministerial Conferences, says in bullet point 10: “The Chair of the Ministerial Conference should be provided with an APPROPRIATE AMOUNT OF FLEXIBILITY (emphasis added by capitalization) in the consensus-building process. He/she should be made aware of and respect the best practices applied in the preparatory process.”

To adapt a term used by President Saddam Hussain of Iraq, this is a ‘mother of all escape clauses’ to legitimise any kind of procedure and process.

The draft statement was considered at the informal General Council consultations on the same day that in the morning, the WTO Director-General Dr. Supachai Panitchpakdi and his chef de cabinet, Mr Stuart Harbinson, met with some NGO representatives in Geneva (which included not only the public interest civil society groups, but business groups and the PhRMA), and among others discussed the issues of ‘internal transparency’ raised by some of the NGOs, who were highly critical of the preparatory process to Doha (conducted by Mr. Harbinson as chair of the General Council) and at Doha itself. The NGOs were particularly critical of ‘Green Room’ processes and consultations, and of the mini-ministerial meetings that preceded Doha, and now being repeated in the Sydney one (and the one to be hosted by Japan early next year).

According to the NGO representatives present, who have circulated their versions to their constituencies and/or on their websites, Dr. Supachai said that Cancun will see intensive negotiations, and hence the organization “will have to be transparent and inclusive”; that there was a need to learn from the lessons of Seattle and Doha; that “the principle is that all meetings will be fully inclusive”; that the proposals of developing countries on ministerial conferences will be taken on board (“I can promise you that” - Supachai).

On the ‘Green Room’ issue, Harbinson said that he could not remember any Green Room meeting during the Doha process, that sometimes the DG would have meetings in his office “but there was no central green room in operation”.

Mr Harbinson was no doubt technically correct. The term ‘green room’ for the consultations called by the DG at Centre William Rappard (GATT headquarters) in the days of Directors-General Olivier Long and then Arthur Dunkel were held in the DG’s conference room (which had a green wallpaper decor) and the term perhaps was made popular by this writer during the Uruguay Round reportage.

And when the mid-term Ministerial meeting of that round was held in Montreal, in a building where a grim grey was the decor, the Canadian hosts and Dunkel arranged to have a green table cloth spread on the conference table in the DG’s conference room.

Now the green colour decor has disappeared from the DG’s conference room. And the many small consultations that Harbinson or Moore convened in the preparatory process were held in slightly larger conference rooms at the headquarters, in hotels over lunches and dinners convened by key delegations in turn, and the ‘mini-ministerials’ including those at Mexico and Singapore in 2001.

And at Doha, it was a case of every rule in any conference book, and including those of the WTO, being ignored from the word go in the Qatari democratic style and culminating in the Presidential Suite No.11 (of the Intercontinental Hotel/Conference Centre), where on the last night (of an extended conference, by ukase of the President of the Conference, without any formal plenary to agree as at any other international conference, including past GATT/WTO conferences) invited ministers were made to sit through an entire day and night, to reach ‘decisions’.

The LMG paper to the General Council in May was a response to Doha and an attempt to ‘persuade’ parliamentary, business and domestic opinions in developing countries that these things won’t happen again and that the WTO and its accords should not be repudiated. The LMG document was one that was considered in the capitals by the governments who authorized their Representatives in Geneva to put it forward and ensure orderly procedures in the future.

In an attempt to repeat the past history, the Marchi text in the opening paragraph claims that it “carefully attempts to reflect the main thrust of discussions so far.”

However, at the consultations, several of the LMG countries who had put forward the paper in May and including Nigeria, India, Cuba, Malaysia and a few others who were present, said that the Marchi paper contained nothing about how documents would be transmitted to ministers and whether it would reflect (where there is no consensus) the different viewpoints, and for orderly procedures at the Conference itself, including procedures on naming ‘facilitators’ and to ensure orderly procedures in the last 24 hours of the meeting.

At Doha, new proposals and formulations were being sprung in the meeting in Presidential Suite No 11, at the very last hours - one relating to environment by the EC was brought up at 3 AM and participants were told to accept it, and outraged not only the developing countries, but also Switzerland (whose minister complained in the corridors to the media and other delegates not inside the room).

Marchi at the 2 December consultations, responding to the complaints about his text not reflecting the discussions or the proposals, is reported to have admitted that it had proved difficult to reconcile the differing viewpoints at the General Council, and that he would hold further consultations.

Under the title ‘Internal Transparency and Effective Participation of Members in the Preparatory Process in Geneva and Organization of Ministerial Conferences,’ the draft statement of the chairman of the General Council [JOB(02)/197 of 28 November 2002] said:

On the basis of the three submissions on this issue before Members, as well as the discussions at the May and July General Council meetings and at the informal open-ended consultations on 24 October, the Chairman is submitting for consideration the following statement on internal transparency and effective participation of Members in the preparatory process in Geneva and organization of Ministerial Conferences. While the statement carefully attempts to reflect the main thrust of discussions so far, it should be stressed that this is not a fully negotiated text. The Chairman wishes to emphasize that the principles and practices outlined in this statement do not replace or nullify past practices established in the pursuit of increased transparency and inclusiveness in the WTO.

I.        Existing Principles and Practices

The Principles and Practices set out in Section B of document TN/C/1 (2 February revised draft put forward by General Council chair Stuart Harbinson for organization of the TNC, but parts of it, including one about negotiating bodies being chaired by government representatives, which were made into ‘decisions’) should guide the work of the TNC and the Negotiating Bodies. These Principles and Practices draw extensively on the work done on internal transparency and effective participation of Members since 2000, and stipulate that negotiations shall be conducted in a transparent manner to facilitate the participation of all, and particularly take into account the constraints of smaller delegations in covering a large number of meetings. In addition, the Principles and Practices emphasize that Chairpersons should ensure impartiality, transparency and inclusiveness in the decision-making and consultative processes. In their regular reports to overseeing bodies, the Chairpersons are also instructed to reflect areas of consensus as well as different positions on issues. Finally, document TN/C/1 also urges the Secretariat to continue to take all possible steps to ensure the prompt and efficient dissemination of information to non-resident and smaller missions, in particular.

II.       The Preparatory Process for Ministerial Conferences

The preparatory process should be conducted under the authority of the General Council.

Informal consultations as part of this process should be transparent and inclusive. As a complement to open-ended meetings, smaller consultations may also take place involving individual Members or groups of Members. In order that such consultations contribute to the achievemcnt of a durable consensus, the following guidelines should be reaffirmed:

*        Members should be advised in advance of such consultations;

*        Members with an interest in the specific issue under consideration should be given the opportunity to make their views known;

[This precludes their ability to actually participate in such consultations!]

*        No assumption should be made that one Member represents any other Members except where the Members concerned have agreed on such an arrangement;

*        The outcome of such consultations should be reported back to the full membership expeditiously for its consideration.

*        Meetings of the General Council should be held at regular intervals throughout this process, including at the senior officials level as appropriate, to take stock of the progress in the preparatory work. Taking into account the difficulty that non-Geneva based delegations have in participating in these meetings, every effort should be made to schedule a formal meeting of the General Council around the Geneva Week.

*        Sufficient time should be given for delegations to consider documents.

*        Work on the draft declarations should be completed in the preparatory process to the maximum extent possible, so that Ministers are in a position to focus on outstanding political questions. The language of the draft ministerial declarations should be clear and unambiguous.

III.      Ministerial Conferences

*        The organization of the preparatory process, as well as of the Ministerial Conference itself, should take into account the specific issues facing each conference.

*        Ministerial Conferences should be organized in such a way as to facilitate the work of Ministers in giving political guidance and taking decisions.

*        Members recognize the value of the involvement of capital-based senior officials. Accordingly, and having regard to the specific nature and requirements of each Ministerial Conference, consideration should be given to the holding of a Senior Officials Meeting immediately prior to the Ministerial Conference.

*        A Committee of the Whole should be established at Ministerial Conferences.

This Committee should be the principal forum for consensus building. The Committee of the Whole should ensure that all Members are given equal opportunity to express their views.

*        If necessary, sectoral work by individual working groups is an effective way for building consensus and expediting resolution of pending issues. Taking into account progress made in the preparatory process, the number, structure and chairpersons/facilitators for such working groups should, as far as possible, be announced in advance in the interest of transparency and to assist Ministers and their delegations in their preparations.

*        Consultations to be held by the chairpersons/facilitators should be announced at open-ended meetings of the Committee of the Whole. Chairpersons/facilitators should report back to the Committee of the Whole periodically and expeditiously in a substantive way.

*        In organizing these and other consultations, the Chairpersons and facilitators should seek to co-ordinate as much as possible to facilitate the participation of all delegations.

*        The right of Members to designate their representatives to meetings is fully recognized. Heads of Delegations have the discretion to mandate officials to speak on their behalf.

*        Sufficient time should be set aside each day at the Ministerial Conference to allow for delegations to coordinate among themselves.

*        The Chair of the Ministerial Conference should be provided with an appropriate amount of flexibility in the consensus-building process. He/she should be made aware of and respect the best practices applied in the preparatory process.

*        An extension of a Ministerial Conference should take place only in exceptional circumstances.

The Marchi draft added; “I believe that through the endorsement of these principles and practices Members are establishing a foundation of convergence upon which further improvements should continue to be made, taking into account the views that have been expressed in this on-going discussion. Building as they do on past decisions, they advance the pursuit of greater transparency and inclusiveness in our work and emphasize the collective commitment of Members to keep up this important effort.”

(For earlier reports - LMG proposals and discussions - see SUNS #5117, 5119 and 5157.) – SUNS5249

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