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Cancun, in process and procedure, to repeat Doha?

Geneva, 1 Sep (Chakravarthi Raghavan) - As trade ambassadors and representatives here, and ministers and officials in capitals, pack their bags to go to Cancun, it is now apparent that the process at Cancun is likely to be as ‘rule-less’ as at Doha.

Over the last two or three weeks of the preparatory process in Geneva, and in particular in reacting to the US-EC joint paper on agriculture, accommodating each other’s interests and asking developing countries to pay the costs and provide markets, a number of key developing countries of the South, including Brazil, China and India formulated and presented their alternative.

At that time, it was said, and their media have reported it, that Brazil’s Foreign Minister Celso Amorim, the Indian Trade Minister, Arun Jetley and others had been in direct touch with each other to evolve a joint position and that this would endure.

In Geneva at the General Council, on 26 August perhaps, the Brazilian ambassador, Luis Felipe de Seixas Correa, in response to the Norwegian envoy and his references to football games, the offside rules and the umpire rulings, had said that Brazil was quite willing to play by the rules, and it was even willing to accept the Norwegian as the umpire, but that WTO had no rules.

It is not exactly clear what would happen at Cancun. However, if the countries in this alliance are serious, they can at least join hands to lay down procedures that will prevent the current state of affairs occurring again.

One thing is already clear that the Cancun process is going to be as rule-less and non-transparent, if not more than at Doha, but with many more civil society groups present.

Perhaps, if they are really serious, Brazil’s Celso Amorim (who knows the rules and procedures and issues, as well as USTR Robert Zoellick and EC Commissioner Pascal Lamy) and India’s Arun Jaitley, an able Supreme Court Advocate in India (before he jointed the government, and a close party confidant and person) would join hands and insist at Cancun that the Conference first decide on rules for Ministerials and the preparatory processes, before taking up any other matter.

At Doha, the draft declaration prepared by the then chairman of the General Council, Mr. Stuart Harbinson, and draft Ministerial decisions (on implementation) prepared by the WTO DG and Harbinson, were presented and introduced at the opening ceremonial session where the Emir of Qatar was presiding and protocol prevent anyone to get up and object.

And even before delegates had arrived, the WTO here and the Chairman of the Conference had already selected and named ‘facilitators’ and this was announced at the first plenary official meeting. Attempts of delegations to challenge and question the procedures were sought to be prevented by just not giving them the floor, but ultimately the Chairman of the Doha conference had to listen to the objections from India and others.

The Doha conference was prolonged by the Chairman on the last day, without any authority, green room talks were held for over 23 hours, and the final session was convened to be held, when many delegations who had come in Qatari special flights (with tickets provided by the hosts) had left.

The Cancun meeting seems likely to repeat at least some of these.

The draft Order of Business for Cancun, in a document posted on the WTO website, WT/Min(03)/5, and purporting to be dated 21 August (it is not clear when exactly it was posted), shows that at the opening ceremonial session, a slot has been provided for the Chairman of the General Council, Amb. Carlos Perez del Castillo.

At the General Council, where Perez del Castillo announced that he would send to Cancun his revised draft text of a Ministerial Declaration, and would not revise or reflect in it the views of others, Brazil was among those who objected, and said the text could not be a basis for further work at Cancun.

At that meeting, when Brazil’s Amb. Luis Felipe de Seixas Correa made this statement, Norway’s Amb.Kare Bryn reportedly brought in the football game analogy, and the offside rule, and suggested that ultimately the umpire had to make decision and similarly at the General Council, the Chairman had to decide!

Seixas Correa is reported to have responded that he was quite willing, in a game with rules, even to accept Bryn as an umpire, but that the WTO had no rules - a point that civil society has been making.

Well, in a dialogue session with some NGOs on August 20, and on which the NGOs have prepared reports and posted it on their websites and sent it out to constituencies by list servers, the WTO head and the ambassador of Mexico, the host country, have made known how Cancun process will be run.

For one thing, the report shows that the WTO head, Dr. Supachai Panitchpakdi has agreed that the WTO has no rules, while the Mexican Chairman, is going to appoint the ‘facilitators’ (as in Doha) and that it would not be a decision of the Ministerial Conference.

According to the report of the NGOs, they were advised that there would be two sets of “facilitators” acting as “friends of the chair” at Cancun and they will be appointed by the Chairman of the WTO Ministerial Conference to assist him in running the meeting. One set will be “senior Ministers” with general functions.  Another set will chair consultations on specific issues.

The report of the NGOs said: “The facilitators will not be elected by the Members. Their identities may be made known to some Members informally just a day or two before the Conference.”

The dialogue session with NGOs involved several NGOs, the WTO Director General Dr Supachai Panitchpakdi, several members of the Secretariat staff, and Mexican Ambassador Mr. Eduardo Perez Motta (who was representing the Mexican Trade Minister who will chair the Cancun Ministerial). The civil society organizations represented were: Africa Trade Network, WWF International, Oxfam International, Institute for Agriculture and Trade Policy, Center for International Environmental Law, International Gender and Trade Network, Third World Network and Public Services International.

At the meeting, NGO representatives criticized the fact that there were no clear rules for something as important as running Ministerial meetings, especially when the WTO prided itself in being a “rules-based organization” with “transparency” being one of its “core principles.”

Even boy scout associations had rules on how meetings are to be run and how decisions are to be taken, the NGOs said. But the WTO did not seem to follow any predictable rules, and the question was whether rules even exist and if not, why not.

Dr Supachai, the NGOs report said, clarified that “the WTO negotiations don’t follow rules because members cannot accept and agree on a common set of rules.”

The meeting was arranged to enable the NGOs to put forward their concerns about the problems of internal transparency and the lack of participation by developing country members in the WTO.

A memorandum by the NGOs on this issue had been sent in July 2003 to the WTO Director General, the Mexican Trade Minister, the Chairman of the General Council and all WTO members. The NGOs include WWF, Africa Trade Network, Oxfam International, Institute for Agriculture and Trade Policy, Center for International Environmental Law, International Gender and Trade Network, Third World Network, Public Services International, Tebtebba Foundation, and Focus on the Global South.

At the meeting at the WTO, the NGOs raised their concerns that the practice of negotiations in the WTO, especially surrounding Ministerials and their preparatory processes were untransparent and did not seem to follow any proper rules or procedures that could ensure participation of the majority of Members.  They raised the current problems where small-group meetings were being held to which most Members were not invited. Moreover there were often so many meetings that delegations could not attend, even if invited.

They also asked whether the different views of Members would be reflected in the draft text to be sent to Cancun, and how would this transmission of text be done if there was still disagreement among Members on the draft?

Dr Supachai said that it would be difficult for a consensus text to emerge from the present negotiations. “There were many differences. Many meetings have been held and more will be so that everyone’s views are heard and in order that gaps between the Members could be bridged. Given the lack of consensus, more meetings after the General Council session could also be proposed to deal with the more outstanding and thorny issues.”

He said that if a consensus text was not possible, some method would be found to indicate the different views of members. For instance, a cover note listing the areas of contention could accompany the draft declaration to Cancun.  Alternatively, the lack of a full consensus will have to be indicated in the text itself. He said at the moment, it was not clear how exactly the transmission of the draft text would be done.

To another question, Dr Supachai informed the NGOs that there would be two sets of facilitators at the Cancun Conference. One group will be made up of senior Ministers who are well-known, established, familiar with the personalities at the meeting and are knowledgeable about the substantive issues at the same time.  These facilitators will be selected by the Chairman of the ministerial meeting from the member countries’ suggestions, bearing in mind a good geographical representation.

The other group of facilitators will be responsible for working on specific substantive issues. These facilitators may also have their own assistants. On the selection criteria for this set of facilitators, Supachai said they would be people who can advance consensus and geographical representation would be kept in mind.

Dr Supachai further informed that the process and negotiations in Cancun will also be facilitated by the Secretariat’s deputy director generals and directors who will provide information, undertake analytical work and assist the facilitators.

Dr Supachai was replying to a query from the NGOs on how the negotiations will be conducted at the Ministerial conference. Supachai said that with regards to the procedure, the current Geneva format of Heads of Delegation (HOD) sessions in the mornings, followed by small group meetings in the afternoon and a report back to the HOD meeting the following morning was working well and he hoped this would also be adopted for Cancun.

The WTO head admitted, according to the NGO report that “this may not be a perfect arrangement”, that he was open to feedback and to receiving any complaints about the ministerial. In his view, the first two days of the Ministerial would in the main be procedural. The final two days, the last 50 hours would be the key. Therefore, there was the need to have meticulous planning to avoid rushed solutions.

An NGO participant asked whether the procedures and facilitators will be made known in Geneva or in Cancun. What would the relationship be between the members and the facilitators? How will the drafting of any text in Cancun be done, will there be a drafting committee for this purpose?

The NGO said that in Doha, texts seemed to appear from nowhere, many were produced at meetings in the middle of the night, and even the Ministers and delegates did not know who had drafted them. He said this kind of untransparent procedure should not be repeated. Also if there is an intention to extend the Ministerial, would the decision be made by all the members?

Mexican Amb. Motta responded that many of these issues should be sorted out in Geneva. He said that the rules of previous ministerial meetings would be followed. Ultimately the Chairman of the Ministerial Conference would have to decide, but the idea is to follow what Supachai had said.

On the selection of the facilitators, Amb. Motta mentioned that this will be done by the Chairman of the Ministerial since he will have to work with them.  When doing so, he will take into consideration the standing and integrity of the Ministers and make sure that there will be adequate geographical representation.  Amb. Motta indicated it would not be feasible for these facilitators to be elected by the members. For some measure of transparency, these facilitators will be chosen and announced to all members before the ministerial meeting starts.

On how texts are produced and whether a drafting Committee would be used, Supachai replied that there is no agreement at this stage to set up such a committee. Nonetheless, he said, there will need to be a forum for texts and documents to be discussed and late night meetings would not be used to get agreements, as clear heads are needed.

He also suggested that if necessary the Ministerial conference may be extended.  He stressed that on the last day and last hours of the meeting when key decisions will be taken, the current HOD format of Geneva would be maintained.

To resolve problems and differences and to forge the way forward during the Ministerial meeting, Supachai said that there will be a strategy session every morning involving, the Mexican management group, the WTO management team and the facilitators.

An NGO representative pointed out that civil society is very critical about the WTO’s absence of proper rules and procedures and the resultant lack of predictability. Each Ministerial seemed to have its own different procedure.

For instance, before the Singapore Ministerial (1996), the Director General sent a cover letter indicating differences in the draft text. Before the Seattle Ministerial, the draft declaration itself contained many square brackets capturing the differing views of the member countries. But before the Doha ministerial a clean declaration was produced despite the clear and substantive differences between the members and no cover letter was sent to indicate the differences.

He pointed out that this situation was ironical in that at there were no clear rules for something so important as running Ministerial meetings, especially for an organization that prided itself in being rules-based and transparent. Even boy scout associations had rules on how meetings are to be run and how decisions are to be taken. But the WTO did not seem to follow any predictable rules, and the question is whether rules even exist and if not, why not.

Dr Supachai clarified that the WTO negotiations don’t follow rules because members cannot accept and agree on a common set of rules. He said he had been trying hard to establish rules. However, the nature of the negotiations is such that some members have argued that a certain set of rules would favour some and not others. Nonetheless, he said, we are trying to come up with arrangements to ensure predictability as much as we can.

Another NGO representative said it was curious that the WTO did not seem to want clear rules of procedures, as rules are made to ensure and facilitate effective negotiations and participation rather than to hamper it.

An NGO representative suggested that one way where the importance of transparency can be constructively balanced with the need for efficiency in the negotiations is to adopt the format which was used in the negotiations for the UN Biosafety Protocol. Countries are grouped according to their positions on the issue rather than according to more traditional categories such as geography, political affiliation or economic weight.

Negotiating seats are then allotted commensurate with the size of the grouping.  The groups will then choose their respective negotiators. The negotiations are then conducted in an open forum where all the members are present but only the elected negotiators could speak. Such a format ensures that all members are allowed to be present, and different positions of the member states are reflected in the negotiations. At the same time, the number of negotiators is limited so that the negotiations can proceed efficiently.

Dr Supachai responded: “I have no objection to your suggestion” and asked some of his staff whether such an arrangement could be made in Cancun. Ambassador Motta of Mexico however stated that such a system was not possible, as no country would want another country to represent it.

This seemed to miss the point entirely, as the NGOs were suggesting a system in which all members would at least be present and witness what is happening. In the present small-group consultations and Green Room meetings, those few selected are in any case negotiating on behalf of the members as the decisions taken in these secretive small-group meetings are thrown to the general membership to adopt!

The meeting ended without any conclusion as to what kind of procedures would be followed at Cancun. The NGOS were left with the impression that, despite the rhetoric of inclusiveness etc., the big powers will want to have their way again in being able to use manipulative tactics to get developing countries in the end to adopt decisions decided by these big powers.

The question that the NGOs were left with, was whether the developing countries can this time see through the tactics and the game and refuse to be bulldozed.

Or will it be Business As Usual again in the WTO, where the “rules-based organization” will operate without rules and in the confusing maze of practices without procedures, the major powers will again be able to produce an “outcome” they desire, whatever everyone else wants.

If developing countries are serious, the proposals are officially already on the table. There is the year-old proposal from the Like-Minded Group of Countries, and the more recent one from a group of African countries, based on the ACP Ministerial Declaration. These could provide the basis for the negotiations on this.

However, some experts suggest that perhaps one reason why a large number in the club of trade ministries and ambassadors prefer the current state of affairs, is that in a sense collectively and individually, they too are unaccountable and in each country, foreign or trade ministries handling the WTO get a handle over other parts of the government and their parliamentary bodies. – SUNS5409

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