[DEBATE] : WTO Process - Irregularities at WTO

[Riaz K Tayob]

Cuba and Venezuala have made a formal submission that may have resonance 
throughout the continent but for the sheer weight of the bullying 
tactics used against our countries...




World Trade
Organization


TN/C/7
WT/GC/105
9 February 2006

(06-0563)


Trade Negotiations Committee
General Council
Original:  	English/
	Spanish



Irregularities identified in the negotiation and decision making process 
at the Sixth WTO Ministerial Conference

Communication from the Bolivarian Republic of Venezuela and Cuba


	The following communication, dated 7 February 2006, is being circulated 
at the request of the Delegations of the Bolivarian Republic of 
Venezuela and Cuba.

_______________


Introduction
	The decision-making process at the WTO, particularly during the 
ministerial conferences, has become increasingly complex as Members, ten 
years after the implementation of the Agreements resulting from the 
Uruguay Round, have had to face the good and bad decisions of the 
commitments made in the Organization, which have had a direct impact on 
the implementation or disarticulation of economic, trade and social 
policies due to their binding nature.  This impact has been greater in 
developing countries.

	It should be noted that there is a gap of almost two years between one 
ministerial conference and the next, in which no progress or substantive 
agreements are made with regard to the negotiations and their texts. 
However, it is expected that in a few weeks or days prior to or during 
the ministerial conference an agreement will be reached concerning 
documents which are tens of pages long.  This is particularly difficult 
and puts countries with small delegations at a negotiating disadvantage, 
as they lack sufficient capacity to react to the large amount of 
documents circulated and meetings convened.

	Article IX of the Marrakesh Agreement governs the formal 
decision-making in the Organization.  The Regulation of Meetings of WTO 
Bodies (July 1997), including the ministerial conference, also refers to 
this Article, as well as the other provisions concerning the 
decision-making of said agreement.

	However, nowhere in any of its five paragraphs or in any other WTO 
provision, is it established how the process for final adoption of 
decisions or the exchange of information and communication between 
Members and the Secretariat shall be carried out, nor is there any 
information regarding the limits of action of the latter.  There are, 
however, agreed principles such as transparency, non-exclusive 
participation of all Members, as well as the need to guarantee respect 
for what has been concerted, which cannot be ignored.

	In 2000 and 2002, internal transparency-related issues and effective 
participation of Members in the WTO decision-making, were the focus of 
the General Council’s discussions for months.  Therefore, this is not 
the first time that legitimate concerns that have emerged, in 
particular, after a Ministerial Conference is held, have been addressed. 
  But, in spite of the work done, we have not been able to prevent some 
of these irregularities from being retaken and, even, some new ones from 
reoccurring.

	During the Ministerial Conference in Hong Kong, China, from 13 to 18 
December 2005, and even during the preparatory process that began in 
November in Geneva, a number of procedures were implemented to seek 
consensus, which did not have the support of all Members, and in many 
cases received the manifest disagreement of a majority of developing 
countries. However, with the support of some Members, they were imposed 
by decision of the Secretariat, which thus exceeds its functions.

	These actions which involve the taking of important decisions are 
extremely worrying, and thus it is necessary that the General Council 
realize that they are undermining the WTO’s own credibility.  Account 
must be taken of the fact that any decision adopted during Ministerial 
Conferences, including procedures to arrive at consensus among Members 
(and not only in case of substantive matters per se), will eventually 
have an impact on the development policies of the countries, hence its 
extreme sensitivity and the need to avoid in future the repetition of 
processes or procedures that did not have due consensus because they 
were not generally accepted by the members.

	On this basis, the process of adoption of the Ministerial Declaration 
in Hong Kong can be considered to have been an unfavorable exercise to 
maintain confidence in the WTO at any cost and to enable the assertion 
that this Organization can guarantee conditions that translate into 
tangible and sustainable economic results for developing countries.

The irregularities identified
	During the preparatory process in Geneva, in particular, during the 
last phase, the following irregularities were identified:

The delayed submission of the first draft Ministerial Declaration (26 
November) leaving little time before the beginning of the conference. 
This brought about other negative actions that are listed below.

The imposition of a non-consensus negotiating text (Annex C on Services) 
that was prepared by the Chair of the negotiating body, with the 
sustained rejection of a significant amount of Members.  This took shape 
with the delay in the introduction of brackets and the subsequent 
removal of them, without having the positive consensus of all Members.

The sudden removal, without consultation and just a few days into the 
Conference, of the cover note that was part of the draft Ministerial 
Declaration which made clear, upon insistence of many delegations, that 
the annexes did not have consensus among the Members.

The introduction, for the first time, of reports by Chairs of the 
negotiating bodies as an integral part of the text of the Ministerial 
Declaration which, in fact, should contain texts agreed on by the Members

	During the negotiating process in Hong Kong, China, the following 
irregularities were identified:

The holding of only two formal meetings (opening and closing sessions) 
in the entire Conference to formally adopt the decisions, whose format 
was designed to prevent delegations from taking the floor and speaking 
extensively on the matters subject to approval, due to the fact that the 
seating in the halls was not arranged with delegations in mind and no 
microphones were available.  The other meetings were informal, and 
therefore, there is no record of the discussions that took place 
therein, which is something that has had a crucial impact on the outcome 
of the Ministerial Conference.  Furthermore, what was discussed in these 
consultations was not always promptly put forth to all Members for their 
consideration.

The reoccurrence of “Green Rooms”, which were given the name of 
“Chairman’s Consultative Groups”, and which were mechanisms that helped 
to present positions agreed by a few countries and which generally 
attempted to impose themselves on the non-participating majority.  It 
must be noted that the groups of countries with small delegations see 
their reaction capacity diminished before alternative proposals in so 
little time. Furthermore, the lack of a record of the discussions in 
these limited transparency.

The granting of occasionally unlimited power to the facilitators.  There 
were issues in which an open meeting to all Members was never held, not 
even to inform of the modifications of the text of the Ministerial 
Declaration on the basis of their interactions with some delegations. 
On other occasions the substantive intervention of the countries was 
restrained during these open informal consultations, arguing that there 
was no consensus and it was necessary for delegations to first come to 
an agreement on the issues of divergence.

The lack of attention to some proposals by important groups of 
developing members, which were not considered at all, nor negotiated 
with them; simply, predetermined texts were imposed.

Conclusions
	The WTO is responsible for always guaranteeing a transparent and 
reliable decision-making process, whatever these decisions may be, but 
particularly those deriving from a Ministerial Conference whose results 
have a particular impact on the membership and the future work for a 
given period of time.  The situations described above must be avoided at 
all cost in the future as they severely undermine the credibility of the 
agreements and, thus, jeopardize the Organization itself.

	In addition, we consider that the above-mentioned irregularities 
attempt against the full realization of the development dimension of the 
Doha Work Programme, an immensely relevant issue for developing 
countries which, as a matter of fact, make up the majority of members in 
this Organization.

	Consequently, it is advisable to promote an open discussion on these 
issues for the General Council to make a decision, in light of the 
experience of the preparatory process and the very holding of the Sixth 
Ministerial Conference in Hong Kong, as well as the irregularities 
already analyzed from preceding Ministerial Conferences, in order to 
prevent this type of actions from being retaken during future 
decision-making processes.