Harbinson vs NGOs - whoever wins, the WTO may lose
A possible legal battle that could erupt over allegations of “non-neutrality” surrounding an incoming top WTO official threatens to court further controversy for the world trade body.
by Chakravarthi Raghavan
GENEVA: A letter of complaint by Stuart Harbinson with a suggestion of contemplated legal action over an NGO sign-on letter to the incoming WTO Director-General Supachai Panitchpakdi against Harbinson’s continuing to serve as chair of the Special Sessions of the Committee on Agriculture after his taking over as Supachai’s chef de cabinet, appears to have landed the WTO in a battle it cannot win, whichever side prevails in this fight.
The complaint was voiced in a letter sent by Harbinson, who is Hong Kong China’s representative to the WTO, on 24 July to Aileen Kwa, representative in Geneva of the NGO Focus on the Global South. The subject of the complaint is a sign-on letter she initiated asking Supachai to direct Harbinson to step down as chair of the Special Sessions (which run the agriculture negotiations in the WTO) when the latter takes on the post of chef de cabinet in September; she has also written an article about Harbinson’s role, before and during the Doha Ministerial meeting, in formulating and putting through the agenda of new trade negotiations.
Trade diplomats at the WTO, several from the developing countries, who are opposed in principle to secretariat officials chairing negotiations and hence have not so far agreed to Harbinson’s continuance, said that they had not known of or seen the letter (which has now been circulated and signed by 43 organizations and 20 individuals) but were told about it by some supporters of Harbinson.
Focus on the Global South and Kwa have responded to Harbinson with the public comment: “Let him take us to court. It would be an excellent opportunity to make public exactly how anti-democratically the WTO, and Harbinson as the chair of the General Council, last year had operated in order to push through a new round of trade talks.”
Contrary to principles
The NGO letter itself, sent to Supachai in the week of 22 July and made public, has been signed by several leading non-governmental, national and international development groups active on trade, in particular agricultural, issues. The letter in substance argued that the continuance of Harbinson as chair of the agriculture negotiations, after he becomes a WTO secretariat official, would be contrary to the principles on such matters endorsed by the Trade Negotiations Committee (TNC) in February this year (see below).
The letter sought Supachai’s assurances that Harbinson would relinquish his role as chair of the Agriculture Committee Special Sessions once he assumes his post at the WTO, since a continued role as chairman would be contrary to Article VI.4 of the WTO Agreement and the recent TNC decision. Art. VI.4 states that: “The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character. In the discharge of their duties, the Director-General and the staff of the Secretariat shall not seek or accept instructions from any government or any other authority external to the WTO. They shall refrain from any action which might adversely reflect on their position as international officials. The Members of the WTO shall respect the international character of the responsibilities of the Director-General and of the staff of the Secretariat and shall not seek to influence them in the discharge of their duties.”
The article by Kwa said that the US, EC and the Cairns Group (of agricultural exporter countries) favoured his continuance as agriculture chair, that these groups’ support of Harbinson since before Doha had now grown louder, and that as General Council chair in the preparatory process to Doha, he had not been neutral but had favoured the big players.
In his letter, Harbinson complained that Kwa and the NGOs had ignored his position, as the representative of Hong Kong China, in opposing the US and EC on anti-dumping and textiles. Harbinson said, in the portion of his letter made public on the website of Focus on the Global South: “It is a pity your research didn’t cover, just to take a few examples, my many bruising battles over the years with the US and EU on anti-dumping and textiles, or my chairmanship over the last three years and up to now of the International Textiles and Clothing Bureau (ITCB) - an association of developing country textiles exporters which has fought tenaciously against protectionism in developed countries and especially the US and EU. It is also a shame that you did not quite get the TNC decision on chairmanships accurately. However, if one is bent on defamation - which appears to be the case - I suppose these things are unlikely to get in the way. I will have to consider whether there is anything I can do to defend myself against your completely unsubstantiated accusations.”
In February, the TNC endorsed the negotiating principles and practices set out in Part B of a statement by Harbinson made when he was Chair of the General Council (see TWE #272/73). Paragraph four of Part A of his statement said: “I should like to note that in my consultations a wide variety of views have been expressed, and I am grateful to delegations for the cooperative and constructive spirit they have shown throughout. While I have carefully considered and attempted to reflect the delegations’ views in my statement, I must stress that this is not a fully negotiated text. Delegations will of course have the opportunity under Item 4 of the Agenda to express their views and understandings of the sense of the points I am putting forward in summary here. I should, however, like to note in particular the view expressed by a number of delegations that the proposed appointment of the Director-General ex officio as Chairman of the TNC under item 1 of the Agenda is an exceptional arrangement and that appointments to WTO bodies should normally be made from among representatives of WTO Members.”
This was merely taken note of by the TNC members, many of whom however insisted upon and converted the parts relating to the principles and guidelines and structures for negotiations as a decision.
In the negotiating structures adopted by the TNC, the fourth bullet point of Harbinson’s statement under Part C says: “Chairpersons [of individual negotiating bodies] should be selected from among Geneva-based representatives in the majority. Other qualified individuals nominated by Member governments could also be considered. This would have to be on the understanding that these individuals would be available in Geneva as often as needed, and that any related costs would need to be handled in a way which did not disadvantage Members for whom there could be a problem.”
As with many other more legally binding texts of the WTO that have been so drafted that proponents of varying viewpoints could each invoke some part of the text to support their view, this too has thrown up problems of interpretation - with the structures for negotiating bodies decided by the TNC making clear that only Geneva-based representatives or others nominated by governments could chair these bodies.
Preceding the TNC decision were many informal consultations, during which the names of some WTO officials and retired ones proposed to chair various negotiating bodies (including those on services and non-agricultural market access) were turned down by the developing countries, on the ground that only representatives of member countries should chair them.
Diplomats of several developing countries who have not agreed to Harbinson continuing to chair the agricultural talks while serving as Supachai’s chef de cabinet have made clear that their objections relate to this issue of principle.
The dispute and suggestions of legal action, or using it to get an endorsement of Harbinson by the WTO membership, may only subject the WTO processes to greater controversy in the only ‘court’ that matters - public opinion.
Walden Bello, the Executive Director of Focus on the Global South, has expressed concern over the threat of legal action to curb freedom of speech. He has also identified five incidents of “non-neutrality” identified in Kwa’s article, and the basis for the joint letter, complained about by Harbinson:
1) As chair of the General Council during preparations for the Doha Ministerial, he removed the brackets (which indicate lack of agreement) around the new issues (investment, competition, government procurement and trade facilitation) in the texts forwarded by him on his own authority as a formulation that would have consensus, ignoring the strong opposition of a number of developing countries opposed to these issues and formulations.
2) Harbinson contravened Art. IX:1(2) of the WTO Agreement on decision-making, by submitting a text which did not have the consensus of the membership but which was sent to Doha by him “on his own responsibility.”
3) The pre-Doha preparations fell short in terms of transparency and inclusiveness, with many developing countries unhappy at being excluded from crucial meetings, sometimes despite an expressed wish to be present.
4) As chair of the Agriculture Committee Special Sessions this year, Harbinson’s 20 June oral report of the first substantive Special Session (17-18 June) received criticism from several members for not reflecting fairly the views that had been expressed.
5) A coalition of developing countries in March had fought hard to limit the number of agriculture Special Sessions this year due to their limited resources, but as chair Harbinson introduced additional “inter-sessions” that have essentially become Special Sessions, hence rendering futile the fight of these countries to limit the number of negotiating Special Sessions. (SUNS5170)
From Third World Economics No. 285 (16-31 July 2002)