WTO DG pulled up for flouting mandates and rules

Some of the practices adopted by the WTO Director-General in the conduct of WTO talks were called into question on 25 July at the Trade Negotiations Committee, which was meeting again after a space of two years.

by D. Ravi Kanth

GENEVA: The World Trade Organization Director-General, Roberto Azevedo, was taken to task on 25 July by developing countries for flouting the mandates of the Doha work programme and for adopting questionable procedures and practices, such as heads-of-delegation (HoD) meetings, in his efforts to advance new issues by the backdoor, several trade envoys told the South-North Development Monitor (SUNS).

There were some particularly hard-hitting remarks by India and Uganda at the informal meeting of the Trade Negotiations Committee (TNC), held after two years, over Azevedo’s freewheeling tactics and his efforts and those of some WTO officials to promote some new issues and the agenda of a few developed countries.

Several countries – India, Uganda and the African Group, among others – reminded the DG – who is also the chair of the TNC, which was established under the Doha work programme – that he has no mandate to convene HoD meetings for negotiating issues.

Azevedo’s convening of the informal TNC meeting followed by an informal HoD meeting on 25 July was apparently to facilitate the United States to make a statement at the HoD meeting but not at the TNC, to which it remains opposed, according to a trade envoy who asked not to be quoted.

The developing countries at the TNC meeting emphasized the centrality of the Doha Development Agenda negotiations, and suggested that the DG or his secretariat are violating the agreed ministerial mandates by canvassing for new issues such as electronic commerce and disciplines for micro, small and medium enterprises.

They cautioned the DG that failure to adopt and follow credible and well-established practices as per the ministerial mandates is leading to erosion of the trade body’s credibility.

On the issue of the informal HoD meetings, India’s new envoy to the WTO, Ambassador J.S. Deepak, said “our understanding is that a forum for negotiations can only be created by the decision of the [WTO] Ministerial [Conference]”, according to people present at the TNC meeting.

Further, the mandate of the TNC, he said, “flows from the decision of the Ministers [at the Ministerial Conference] in Doha in November 2001.”

“The TNC was set up to supervise the overall conduct of the negotiations under the guidance of the [WTO] General Council,” India pointed out.

“The TNC, therefore, together with its [negotiating] bodies remains the only negotiating forum at the WTO and no other parallel negotiating forum can be created,” India argued.

The DG in his capacity as chair of the TNC is free to report to the General Council on his travels and meetings under the framework of the TNC, the Indian ambassador continued.

India sought to know from the DG the need for having informal HoD meetings chaired by him.

Hard-hitting

In a hard-hitting critique of the questionable practices adopted by the DG, the Ugandan representative said, somewhat mockingly, that the DG must be congratulated “for having reconvened the TNC after such a long time.”

Uganda reminded members that the last meeting of the informal TNC was held in January 2015. “In this time, two formal meetings of the TNC were also convened, the last one being in July 2015, which is two years today,” Uganda said. “Since then, no formal or informal meetings of the TNC had been convened.”

Uganda raised three points on process issues: the role of the TNC chair; the mandate of the TNC; and the authority to create negotiating fora.

Reminding the DG that “the TNC was created by the Fourth Session of the Ministerial Conference of the WTO under Para 46 of the Doha Ministerial Declaration”, Uganda said there was no immediate decision then on who would chair the TNC. Members “were torn between those who wanted the Director General, and those who wanted the leadership to be from among representatives of WTO members”, it pointed out.

“It was therefore agreed that the DG, as an exceptional arrangement, be appointed in an ex officio capacity to chair the TNC, it being understood that it does not create a precedent for the future,” Uganda maintained.

Uganda pointed to the mandate of the TNC by citing the then chair of the WTO General Council, Ambassador Sergio Marchi of Canada, who had clarified: “The mandate for the TNC, as for the negotiations as a whole, is that agreed by Ministers at Doha in November 2001, and set out in their Ministerial Declaration ... Ministers have established [the TNC] under the authority of the General Council to supervise the overall conduct of the negotiations ... that is the mandate.”

Uganda told the DG that “any moves to create a structure, or forum, parallel to and in competition with the TNC, as far as negotiations are concerned, [are] inconsistent with the mandate of the TNC and the social contract for which the holder of the Office of Director General is bound by the membership to execute as Chair of the TNC.”

It stressed that “the only contract that the Director General has in as far as matters of negotiations are concerned is limited to the TNC.”

The DG, said Uganda, has no legal basis to expand or limit his role. Uganda pointedly asked Azevedo: “Where does the DG derive the authority to create this parallel structure, which is competing against the TNC? Has the TNC outlived its usefulness? Have the negotiations which were mandated been concluded? Have we agreed to wind up the TNC?”

Uganda further explained that in its view “the right to create fora for negotiations has been clearly spelt out in Article III.2 of the Marrakesh Agreement”, which states: “... The WTO may also provide a forum for further negotiations among its Members concerning their multilateral trade relations ... as may be decided by the Ministerial Conference.”

“As we understand, there has been no such Ministerial Decision to create a structure counter to the TNC,” Uganda maintained.

It quoted paragraph 34 of the Nairobi Ministerial Declaration, which says: “While we concur that officials should prioritize work where results have not yet been achieved, some wish to identify and discuss other issues for negotiation; others do not. Any decision to launch negotiations multilaterally on such issues would need to be agreed by all Members.”

Uganda told the DG that “unilaterally setting up this parallel structure is an attempt at institutionalizing the disagreement in Para 34 of the Nairobi Ministerial Declaration without authority of Article III.2.”

Further, paragraph 34 “has no reporting requirement for the DG on new issues”, Uganda said.

More importantly, paragraph 34 “does not mandate the creation and/or establishment of any new forum for negotiations”, Uganda argued.

“In fact, to do so would be an attempt at exceeding the authority of the DG as laid down in Article VI of the Marrakesh Agreement and defeating the instruction, object and purpose for which Ministers created the TNC in the first place,” it maintained.

International character

Further, what the DG is doing is “in contravention of Article VI.4 of the Marrakesh Agreement”, which requires that “The responsibilities of the Director-General and of the staff of the Secretariat shall be exclusively international in character ... They shall refrain from any action which might adversely reflect on their position as international officials.”

While acknowledging there were instances where the then DG had undertaken to convene HoD meetings before the Doha Round, Uganda said “such meetings were convened [at that time] with the express agreement of the members.”

Uganda argued that “a Director-General in his capacity as chair of the TNC is free to report on the various travels and meetings under the framework of the TNC.”

“There is no need for creating another forum without following due process,” it maintained.

“Further, every member has a right to speak on any issue of national interest to them within the TNC [and] it is the duty of the other members to debate and either agree or not with any suggestions,” Uganda argued.

“This is why this is called a member-driven Organization and all of this is a function of negotiations,” Uganda said.

In conclusion, Uganda said “we are at a critical juncture within this Organization where it will matter in the history of the future, on why a rules-based organization elected to proceed by setting aside a critical part of its mode of operation that has defined its negotiating history.”

“As the weakest and most vulnerable members of this Organization, the only protection we have in this Organization is the protection afforded by rules, which have variously been etched in our fabric as Agreements, Ministerial Decisions and Declarations and/or Mandates,” Uganda maintained.

“If we do not defend the strong legal structure of this Organization, as we acknowledged in Nairobi, then slowly all small, less powerful, and poor delegations will lose the voice and protection of such rules,” Uganda said.

The questionable practices adopted without proper TNC meetings have led to a sustained “push” for proposals in complete disregard of established rules and procedures and also without an explicit mandate, Uganda argued.

It pointed to “a renaming of divisions in this Organization, in complete disregard of the object, purpose and spirit of Paragraph 1(g) of the July Framework.”

“We have witnessed some members of the Secretariat engage in attempted interpretation of Multilateral Agreements ... We have witnessed some members of the Secretariat prepare papers and offer interviews to support one point of view against another as though they were surrogate proponents,” Uganda maintained.

Uganda asked why “the Secretariat did not make any presentations in defence of the Structural Transformation and Industrialization of Africa in line with Agenda 2063: The Africa We Want.” The Secretariat also never spoke “in defence of Public Stock Holding for Food Security Purposes or the SSM [Special Safeguard Mechanism].”

“It is therefore our noble duty to raise these systemic concerns and request the Secretariat to exercise maximum restraint and show neutrality in line with the WTO’s international character,” Uganda said.

“We therefore do not support any attempts at creating structures and/or fora without an explicit mandate and would support further consultations on this issue going forward preferably under the auspices of the General Council,” Uganda maintained. (SUNS8511)         p