|
||
|
TWN
Info Service on WTO and Trade Issues (Sep25/06) WTO:
Facilitator's email on decision-making sparks concerns on consensus Geneva, 9 Sep (D. Ravi Kanth) -- The facilitator overseeing the "World Trade Organization reform" track on "decision-making" is set to convene an informal meeting on 22 September, amid growing concerns over alleged attempts to undermine the fundamental right of WTO members to decide on issues by consensus, according to people familiar with the development. The changes sought in the practice of decision-making by consensus appear to pivot around bringing plurilaterals onto the centre stage in order to unsettle the multilateral processes at the WTO, said people who asked not to be identified. Regardless of their size or share of global trade, all members - least-developed, developing, and developed countries alike - enjoy an equal right to resolve issues through the cardinal principle of consensus. However, a small group of industrialised countries and the "Friends of the System" are seeking to dismantle this principle on grounds that it runs counter to their interests, said several trade envoys who asked not to be named. A large majority of members appear to be fiercely pushing back against what they view as a dangerous manoeuvre, said trade envoys from Africa, Asia, the Caribbean and Pacific, and some South American countries, all of whom spoke on condition of anonymity. "If the small group of powerful countries does away with decision-making by consensus, we risk becoming second-class members with no say in crucial decisions taken at the WTO," said a trade envoy who asked not to be identified. Significantly, previous WTO ministerial conferences - such as MC12 in Geneva (2022) and MC13 in Abu Dhabi (2024) - did not even contemplate a change in the practice of decision-making by consensus. Meanwhile, MC14 in Yaounde, Cameroon (2026), addressed the issue only through the chair's report, owing to a lack of consensus among trade ministers at the meeting, said people familiar with the matter. Against this backdrop, an email sent to members on 7 September by the facilitator on "decision-making", Ambassador Katsuro Nagai of Japan, appears to reinforce the concerns voiced by a large majority of members that they remain opposed to any change in the practice of decision-making by consensus, as was the case during the last meeting held in July. Incidentally, Japan's proposal (WT/GC/Reform/W/8) argues that "if we are truly aiming to deliver outcomes within the WTO, improving decision-making across all day-to-day activities is essential." Rather than maintaining the current practice of decision-making by consensus, Japan emphasised that "Members should review different types of decision-making and explore room for greater effectiveness." Japan also proposed that members "learn from discussions and practices in other international organizations and explore the potential of methods not sufficiently utilised within the WTO, such as the silence procedure and dissociation." Furthermore, Japan contended that "when negotiating new rules, it is useful to examine the possibility of introducing mechanisms such as reservations or opt-outs." "In addition," Japan said, "for other decision-making in the routine operations of Committees, we might consider allowing greater flexibility, such as expanding chair discretion or using the Consensus-1 approach." With a Japanese trade envoy heading the WTO reform track on "decision-making", the entire exercise appears to reek of conflict of interest, said some trade envoys who asked not to be identified. FACILITATOR'S EMAIL In the email (ICN/GC/Reform/6) sent to members on 7 September, Ambassador Nagai said: "Building on our discussions in July, and with a view to deepening our understanding of the issues in a more focused manner, I invite Members, including proponents, to reflect on the following guiding questions" - questions that appear to have been framed at his own discretion. To begin with, the facilitator acknowledged the crucial provision: "Article IX:1 of the Marrakesh Agreement provides that "the WTO shall continue the practice of decision-making by consensus followed under GATT 1947"." However, he seeks to understand from members "this practice of decision-making by consensus, and what do Members consider to be its essential features?" Privately, one trade envoy said: "Article IX:1 of the Marrakesh Agreement is a core principle as well as a practice that cannot be treated as a mere general practice." In his email, the facilitator notes that "concerns have been raised about whether existing processes provide sufficient transparency, inclusiveness, participation, early engagement and opportunities to build convergence." Ambassador Nagai asked members: "What concrete practical process improvements could be considered to strengthen these aspects?" Under the sub-heading "Tools to facilitate decision-making", the facilitator states: "A range of tools and approaches to facilitate consensus-building and decision-making have been put forward." In footnote one, it is further clarified that the tools include, "inter alia, consensus-building tools (e.g. reasoned objections, mediation, escalation to capitals, Pareto improvement and structured dialogue); flexibility tools (e.g. opt-ins, opt-outs, reservations and grace periods); process tools (e.g. differentiated decision-making based on the nature of the decision, silence procedures, voting and constructive abstention); and institutional and governance tools (e.g. consultative or steering bodies and flexible instruments)." Doubts are being raised about these tools - as to who proposed them and whether they are part of a broader strategy to alter decision-making by consensus, according to people familiar with the facilitator's email. Ambassador Nagai framed the following questions for proponents to address, even though the above tools appear to have been mooted by the proponents themselves. The questions include: * Have proponents had an opportunity to consider the questions and comments raised at our last session, and are there additional clarifications they would wish to provide? * Are there other questions or concerns that Members would like proponents to consider and respond to? * Looking ahead, what practical steps could be taken to further develop and operationalise the proposed tools and approaches? On past mandates, without quantifying the large majority of countries, the facilitator states: "It has been suggested that a review and stocktaking of past mandates should precede or inform the work on decision- making." This was an issue raised by many developing countries and LDCs at the July meeting. However, a small group of countries seeking a "regime change" in the rules appear to have opposed the above demand. The facilitator notes that "others have emphasised the importance of focusing on practical solutions, strengthening consensus-building and addressing current decision-making challenges." He asked members: "In light of the factual compilation prepared by the Secretariat at Members' request, how concretely should the consideration of past mandates be taken forward?" PLURILATERALS It is common knowledge that the change in the practice of decision-making by consensus is being primarily pushed by the major industrialised countries as well as the "Friends of the System" group. In contrast, countries like India have suggested that the incorporation of plurilateral agreements into Annex 4 of the Marrakesh Agreement must follow the requirement for consensus as set out in several provisions, particularly Article X:9. The facilitator states: "Others have raised concerns regarding consensus under Article X:9, the interests, rights and obligations of non-participating Members, and the potential fragmentation of the WTO system." Against this background, the facilitator asked: "How could Members develop a consensus-building pathway for possible incorporation of plurilateral initiatives into the WTO framework? In particular: * What criteria, thresholds or safeguards could provide greater clarity and confidence, including on the level of support required and the basis for assessing plurilateral agreements? * In what practical ways could the interests, rights and obligations of non-participating Members be substantially affected by plurilateral agreements? * How could the above criteria and safeguards secure consistency with Article X:9 regarding consensus?" The facilitator's above questions seem to be biased towards changing the current rules as set out in the Marrakesh Agreement, a trade envoy alleged. CONSENSUS-BUILDING TOOLS The facilitator, on his own responsibility, raised a new set of questions on consensus-building tools, which appears to be yet another attempt to undermine the core principle of Article IX:1 that stipulates that decision- making must be based only on the consensus principle. Ambassador Nagai, however, sought members' responses to the questions he seemingly raised on consensus- building tools. The questions include: * How would questions of material harm or affected national interests be defined, assessed and determined, and by whom? Would Members be expected to substantiate such interests, and how would the adequacy or validity of objections be assessed? * Would Members be expected to propose safeguards, compromises or possible solutions, in addition to identifying affected interests? * What would be the legal basis for the proposed approaches, and what implications, if any, would they have for the negotiated balance of Members' rights and obligations? Flexibility tools * Who would determine when differentiated commitments are appropriate and which Members would participate? * How could such approaches avoid fragmentation? * What implications, if any, would such approaches have for the negotiated balance of Members' rights and obligations? Process tools * How could procedural, administrative and substantive decisions be objectively distinguished, where relevant? * How would the proposed procedures operate in practice? * How would it be determined that reasonable efforts to achieve consensus have been exhausted? * Would such approaches alter the operation of consensus, and how would Members' rights and obligations be preserved? Institutional and governance tools * How would representation and inclusiveness be ensured? * How would the Member-driven character of the WTO be preserved? * What additional value would such arrangements bring? In short, he said: "This part of our discussion will proceed with the consideration of the proposed tools and approaches in turn, with a view to addressing the questions and concerns raised on each as fully as possible before moving to the next tool/approach." Furthermore, he appears to have made plurilaterals a central piece of his questions by asking the following: * "Are there other concerns or practical considerations that should be addressed to enable plurilateral initiatives, where supported by Members, to contribute to the WTO framework? * What practical steps could Members take to develop and operationalise such an approach?" On the organisation of thematic discussions, the facilitator seems to be aiming for a rapid question-and-answer session when he suggests that "we take up the guiding questions theme by theme, moving to the next theme once the issues under each have been sufficiently explored." "To allow ample opportunity for exchange among Members, interventions should be focused and limited to a maximum of two minutes per intervention," he said. He informed members that "if consideration of the guiding questions is not completed, we will continue our exchanges at the session in October, which will now take place on 8 October, instead of 14 October as previously communicated in JOB/GC/REFORM/3/Rev.2." In short, the facilitator's email raises serious concerns about the manner in which his questions are being framed - seemingly to steer members' responses towards changing the practice of decision-making by consensus, said people familiar with the questions. +
|
||
