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Decision-making at the wto
Beetham acknowledges that democratic institutions to a large extent exemplify democratic principles that require practical institutional form for their realisation. In order to determine whether the WTO is a democratic institution, we examine whether all the participants have popular control and political equality in decision-making and expound on whether the processes used are transparent, that is, are open to other entities such as NGOs. Decision-making is the most important activity in any IO since it is the process by which the individual wills of Members are coordinated in a given body of an organisation and become the will of the organisation. Ultimately whether the WTO meets the ‘democratic' criteria requires an examination of how decisions are made and who can actually participate in the WTO.
Like most of the other powers of treaty-based institutions, the power to participate in the WTO is determined by its constituent treaty. Throughout this treaty, only Members as identified in Section One can fully participate in the WTO without restrictions. Currently, WTO membership includes 153 states while 31 governments that have applied for membership are ‘observers' until their accession. With an almost universal membership, the WTO regulates over 95% of world trade and investment. Whether these Members act democratically in their regulation of trade remains to be determined herein; what is clear is that Members remain the only decision-makers at the WTO and as Thomas G. Weiss asserts, ‘Member states as in all other intergovernmental bodies, call the shots.'
Representation in decision-making
Issues as to how representative and transparent the WTO decision-making processes are, often arise because the powers to make decisions arguably originate from Members' delegation of power to the WTO. It is questionable as to whether the WTO, even with its legal personality, is in practice a fully autonomous IO with a will distinct from its Members. In response one American scholar, Bacchus asserts that the WTO is only a ‘label' that Members use to describe their shared efforts to collaborate to trade successfully. His argument is shaped by the Realist school of thought where the institution is analysed as a meeting place for states to conduct their trade affairs. States meet because they anticipate that their interests will be best served through their membership and also that the WTO will help further their own particular national objectives. This is true especially when we examine Members' participation within the Ministerial Conference and the General Council, which are open to representatives from all Members, in order to have equality of participation and representation. This supports the above assertion that Members join to further their own national purposes since they expect to have a voice at each organ. Members send politicians, Ministers and relevant experts such as lawyers and economists to the organs because the WTO policy-making relies heavily on technical trade information and expert knowledge, a practice that excludes those that do not meet the criteria from political participation. Often policies are developed in locations or technical trade law language that removes them from the scrutiny of citizens. Without a parliament and other representative fora, that are available at a national level to offer a chance for ‘non-expert' input, this practice is a serious hurdle to democracy at the WTO. The WTO will continue to be viewed as unrepresentative and not transparent by NGOs and individuals who might balance the diverse national interests and add value to the discussion with their additional expertise but cannot contribute to the decision-making process.
In practice, developed Member states have fully staffed diplomatic missions at the WTO headquarters while the less developed Members do not have the means to sustain such representation and usually the same person can represent their government at the different WTO bodies. This makes it hard and sometimes almost impossible for them to attend all meetings and therefore diminishes their influence on the world trade stage. Such Members may not be able to use the WTO to put across their country's specific trade objectives. It is also argued that the WTO does not give significant weight to the problems of developing countries as evidenced from rich countries not fully opening up their markets to products from poor countries. That is why some reviewers of the WTO continue to call for increasing possible participants, for instance formally allowing NGOs to participate, although others question how NGOs can be more representative than states' delegates and argue that opening up the WTO to NGOs would compromise the decision-making process. We examine this in detail in this Section.
The WTO continues to be publically scrutinized by scholars such as Keohane, Nye and Khor who argue that despite its outwardly democratic ways requiring equal representatives from all Members, the WTO tends to promote hegemonic western neo-liberalism. An example is the USA, a powerful western WTO Member, that is currently faced with a dilemma of using its hegemonic powers to attempt to “Americanize” the world and in our opinion it partly uses the WTO to achieve this goal. For instance, EC-Biotech case where the US successfully got a ruling that the EC was wrong to ban GMOs despite the fact that this could injure the trade between the agricultural developing countries and the EU whose agricultural products might not be bought in case they were contaminated by GMOs and if it continues down this path it could worsen the plight of the Least Developing Countries.(LDCs) But if the USA elects to join in the effort to create a more democratic WTO, it would further the effort to raise the standards of living for an overwhelming majority of the world's citizens.
Other scholars dismiss the above criticisms as mere misconceptions since the WTO is a legitimate global entity, acquiring its legitimacy from its Members whose appointed delegates represent all their respective citizens and cannot be separated from the individual legitimacy of each Member. Notably Bacchus' argument implies that the WTO does not have a legal will separate from its Members and is not an ‘independent international actor' like other IOs. This argument is supported by Footer who asserts that the WTO ‘represents a single dense layer of state activity where Members operate as if taking part in a forum of States and where there is little place for the development of the organisation as a separate organisational entity.'
Arguably there is only democratic governance of the WTO to the extent that the individual states that comprise the WTO are democratic, that is to say if the states are truly able and willing to represent the will and needs of all their citizens. The paper analyses this argument further in Section 3 where it deals with ways in which the WTO can be made more democratic but at this point concludes that indeed the WTO is established as a Member dominated forum for carrying out international trade negotiations in line with Article III: 2 of the WTO Agreement. There remains an issue of internal transparency concerning the ability of smaller Members to be effective participants; that is, whether the WTO is able to provide a forum for all Members to understand each other's intentions and where all Members have a voice. Additionally to achieve greater participation and representation, there it is debatable as to whether it is democratically necessary to give individuals opportunities to participate in WTO decision-making. This paper asserts that less developed states have less of a voice and possibly less chance of fully participating in decision-making. In case these Members are not representing the views and the interests of their people at the WTO, there is need for involving other actors such as NGOs who may act as a voice the views of affected citizens. Arguably, NGOs may also serve as a voice of people whose governments are not democratic and those who are not influential at the WTO. This issue is addressed further below following an analysis of the decision-making process at the WTO and observing Members' participation.
The process of decision-making
Article IX of the WTO Agreement provides that the WTO Ministerial Conference and the General Council would continue to make decisions by ‘consensus', as was previously used under the GATT 1947. Consensus is achieved if no Member present at the meeting in question formally objects to the proposed decision. The main advantage of this method is that decisions made are more acceptable to all Members; and in the past, Members have made some important agreements, for example the Agreement relating to ‘Trade and Technology, Goods and Services' and the Agreement relating to Telecommunications. Each WTO Member has the right to attend meetings, make or withdraw proposals or legal briefs, suggest amendments and approve or oppose consensus. In principle, the WTO's consensus procedure gives every Member country the power of veto; for example the developing countries were able to resist the inclusion of labour standards on the agenda of the 1999 ministerial summit in Seattle. Thus the principle of sovereign equality applies within a mainly consensus-making system. From this principle we infer that all Members, whether developing or not, are able to exercise popular control of the WTO decision-making and thus seem to have a voice at the WTO in answer to the issue of internal transparency raised in the previous section.
In case Members cannot reach a decision by consensus, then decision-making takes place through voting with each state having one vote, although it is rarely used. The voting powers do not depend on Members' contributions to the WTO budget as it is with the IMF and the WB. This, prima facie, means that the organisation fulfils the criterion of political equality of the participants and that the decision-making is formally democratic. A variation to the rule of equality of voting power exists through a technique of plural voting where an international organisation is a Member of the WTO. Under Article IX (1) of the WTO Agreement, the European Communities has a special number of votes limited to the number of votes of its Member states rather than by reason of being a customs union. This is possibly because of its special status as an IO that is a founding Member of the WTO but it remains an inequitable position since there are other Members such as Chinese Taipei that are customs unions that are not treated the same. Arguably this special number of votes also reflects the weight of the ECs in international economic affairs and could be justified because each EC Member is individually responsible for observance of all WTO Agreement provisions. It is also attributed to EC Member states being represented by the ECs within the WTO, and do not therefore cast their vote separately. However for the WTO to appear more representative and transparent all other customs unions whose membership is similarly responsible ought to enjoy the same voting status. Nonetheless voting is rarely used and consensus remains the favoured practice for all decision-making at the WTO.
Problems with decision-making by consensus
Scholars including Qureishi and Jackson assert that decision-making by consensus can be as biased as weighted voting because the mood of the forum is influenced implicitly by the weight of opinions proffered by more economically dominant Members. Qureishi argues that the consensus method is like latent weighted voting which is visible where some countries that are against a particular decision might remain silent out of deference to economically influential countries with a higher stake in the outcome of a decision. Additionally Kapoor asserts that the power politics involved in WTO decision-making coupled with the lack of qualitative deliberation among WTO Members, mean that decision-making by consensus can sometime be perceived as ‘dubious' by developing country Members especially. The diverse membership does not help matters and contributes to the organisation being described by Wolfe as “plural if not medieval,” with unsurprisingly untidy decision-making processes. In the large decision-making forum with each Member having a vote, the possibility of stalemate is quite high. An example was in Cancún, Mexico where disgruntled developing country Members unwilling to ignore the arm-twisting on development related issues by the developed country Members, walked out of the negotiations.
WTO efforts to address problems of decision-making by consensus
Due to the fact that achieving consensus among 153 Members is difficult, proposals for the creation of a smaller executive body, perhaps like a board of directors each representing different groups of countries, continue to arise regularly. These proposals are not without criticism, as it will be discussed in Section 3. Still, without a consensus of the Members about these reform proposals, the WTO decision-making process by consensus remains with its problems. In order to simplify achieving consensus, Members resort to green room meetings and form country coalitions, two informal practices that sustain consensus as a form of decision-making lacking both transparency and legitimacy. We look at these matters individually below.
Green room meetings
According to the United Nations Development Programme (UNDP), widespread concerns remain about how WTO agreements are negotiated. Major key trade negotiations leading to these agreements occur in the ‘green room,' wherein small group meetings or caucuses are convened by the Director-General and heavily influenced by developed Members such as Canada, the European Union, Japan and the United States. Since the results of the green room meetings must be consented to by all WTO Members, the green room is not exactly totally undemocratic. However, the practice is criticised because Members do not use the prescribed legal procedures to openly delegate tasks to elected committees, and instead use informal arrangements that favour influential Members. Due to this, the WTO setup may not meet the democratic criteria because some Members lack control over the IO and are not treated equally. Additionally it contributes to the WTO being describes as one of the least transparent IOs.
Another innovation to the green room practice is the ad hoc extension to the informal meetings of a representative group called ‘mini-ministerial,' a tactic that worked best when developing countries were content not to be bound by or to play a role in the trading system, and when Members did not see the need to be at every meeting on every issue. Where all interested Members were able to be in the room, the system worked, but when such meeting cannot be organized without excluding interested Members considering the diverse WTO membership, then it cannot work properly. As shown with the mini ministerial innovation, the technique is most controversially used at the Ministerial Conference although the Director-General continues to convene meetings of ambassadors before major meetings of the Doha Trade Negotiations Committee (TNC), as does the Chair of the General Council, to explore where consensus might be found. For example at the Sydney Mini-Ministerial the Members invited included Brazil, India, Nigeria and the USA. A result of these meetings is that decisions taken by the few selected and invited are sometimes adopted at the formal WTO meetings after being presented to the majority as a take-it-or-leave-it package. The new rules end up binding the rest of the Members under the Single Undertaking.
The Secretariat is becoming more sophisticated at knowing which representatives of groups should be invited to participate in restricted meetings, and the groups themselves are better organized. Although it is impossible for an outsider to know who attends a green room meeting, Members that attends mini-ministerial meetings are known, and the principles are presumably similar; the meetings are attended by coordinators of the regional groups and Members of the so-called ‘Quad' (USA, European Communities, Japan, Canada) are always represented along with other leading traders. This paper contends that it is essential that the green room process is understood by everyone, especially the public who are affected by decisions that arise out of it. Failure to realise this, means that the WTO green rooms remain arguably undemocratic.
The use of such meetings to build consensus is arguably undemocratic since it is contrary to the notion of equality presented by each country having one vote and the consensus system of the WTO. Due to these exclusionary and secretive meeting practices, in the past, the public knew little about the negotiations under way at the WTO and even less about their implications. To date, the WTO has taken steps to address this issue by publishing previously restricted information. However, with regard to the green room meetings, it is hard to come up with clear solutions since Members do not complain when not consulted about a decision with which they agree, and where some are critical when a few Members in a closed room try to impose their views on everyone else. Still, many parliamentarians and politicians seem to be unaware of important WTO negotiations, even though as Members, their countries are bound to change their policies on the basis of WTO agreements. For decision-making to be fully consensual, these power politics must be eliminated from the WTO. As Footer asserts, the WTO is incapable of fulfilling a proper institutional role and becoming a pillar for global governance if its individual Members continue to shape the organisation to their own ends through a variety of informal arrangements and established practices.
Formation of country coalitions
As Wolfe states it is impossible to give all developing and least developed countries a real voice in all WTO decisions; yet it is essential that they participate in negotiations in order to understand the decisions made and the new rules do not impose conditions that they cannot meet. Clearly as Deere asserts, there cannot be effective decision-making without boosting the negotiating capacity of developing countries. To improve their participation in negotiations towards consensus and partly deal with problems of power politics, WTO Members group themselves into country coalitions. The effectiveness of these groups was obvious in Cancún, although the disparate basis of the geographic and sector coalitions made it easier to oppose than propose. After the Uruguay Round there has been a shift in North-South politics in the GATT-WTO system whereby in the past, developed and developing countries had tended to be mainly divided in opposite groups. This divide is still clear for instance in textiles and clothing, wherein developing countries have organized themselves into alliances such as the African Group and the Least-Developed Countries Group. Where developing countries do not share common interests they end up on opposite sides of negotiations leading to more country coalitions being formed although they are still able to form a single coalition on subjects of immense importance to them, such as agriculture.
All in all, developing country coalitions play a major role in addressing the capacity gap on the part of developing countries since they have improved both the technical and lobbying capacity of developing countries, act as a platform for joint-representation towards access to the consensus-building process and a strategy that increase the internal transparency of the green room. Regional groups of developing countries, and the LDC group, now coordinate among Geneva ambassadors, they have ministerial meetings, and since Cancún they are working together at ministerial level as the G-90 grouping of the African, ACP, and Least-developed countries. In spite of the reduction of the later coalitions' market share over the last 15 years, they have secured greater institutional access and are consistently included in green room discussions.
Coalition building partly alleviates some of the ‘democracy deficit and illegitimacy' criticisms traditionally directed at WTO negotiations, since it has contributes to greater access to decision-making processes, a vital first step to increasing the potential of all member states to influence the outcomes of future trade agreements. Since these coalitions are effective, they may improve democratic participation at the WTO in case coalition members observe democracy nationally as it will be discussed further in Section 3 when looking at the role that can be played by Members' Parliaments.
Participation by NGOs
The term ‘NGOs' broadly refers to non-state established voluntary, non-profit organisations that engage in governance activities as insider policy-making participants and/or outside challengers. Herein, it refers to such organisations that engage in advocacy and lobbying to reform the WTO into a democratic IO. Participation in the WTO of NGOs is examined with respect to representation and organisational transparency. International NGOs are recognised by the UN as key international players under Article 71 of the UN Charter which wording is also used in Article V: 2 of the WTO Agreement. The later Article provides that the General Council may make appropriate arrangements for consultation and cooperation with NGOs concerned with matters related to those of the WTO. This provision shows that it is not compulsory for the WTO to work with NGOs and it is totally discretionary for the Council to make such arrangements. NGOs do not participate in WTO activities except in special events such as seminars and symposiums. NGOs can only exert their influence on WTO decisions by putting pressure on their states' governments, in an attempt to influence their decision-making as Members of the WTO, despite their (NGOs') attempts to get more access. The WTO appears undemocratic since it does not require democratic governance within its Members as a condition of membership. In case WTO Members' governments do not take up NGO requests, there is no way that they can get their views, and those of ordinary citizens that they represent, considered before the WTO.
Due to the above, the WTO continues to receive strong criticism particularly from environmental NGOs who argue that they possess expertise and information to bear on WTO questions.Charnovitz asserts that NGOs should be allowed to participate so as to strengthen democratic foundations of global government as the WTO operates too remotely from the public that it is ostensibly serving. This view is supported by Van Den Bossche who states that decision-making is democratic if it involves either directly or not, through representation of those that will be affected by the decisions taken. These are the ordinary citizens and it is to them that Members' delegates are accountable to reach decisions as a result of an open and transparent exchange of rational arguments which allows those represented to ‘watch-dog' the representatives. Scholte argues that NGOs would ‘force the WTO to explain and justify its decisions and act as channels through which marginalized stakeholders who are usually the citizens of some country Members, can voice their concerns in addition to educating these citizens about trade. According to Charnovitz, NGOs can contribute to legitimisation by fulfilling a demand for new social intermediaries mainly on behalf of developing countries that lack the technical capacity which is simply not provided elsewhere. He argues further that NGOs can make the WTO more transparent and open to the public. These measures are examined in the next section when we analyse proposals for democratising the WTO.
On the other hand when NGOs are compared to IOs, it is clear that IOs enjoy a more favourable status at the WTO as prescribed under Article V: 1 of the WTO Agreement. The WTO is required to cooperate with the IMF and the WB in order to facilitate greater coherence in global economic policy-making, and has granted the two and other IOs interested in trade, observer status at the WTO to enable them to follow discussions. These I.Os as observers do not participate directly in the WTO deliberations but are able to contribute to the WTO discussions towards decision-making. Since these IOs also serve as forums for states, it is easier for them to be accepted as observers unlike NGOs which states working under their IOs are reluctant to open up to, because they perceive NGOs as unelected and illegitimate. This is discussed further in Section 3 with regard to the WTO.
Arguably NGOs ought to be treated like the IOs above and given a better standing at the WTO because they may act as citizens' link in the ‘legitimacy chain' to WTO national representatives. It remains to be seen how much more the WTO can and will do to extend participation to NGOs. As Marks points out efforts should be made to democratize the processes of transnational and global decision-making, since this will make national states democratic. It is important that NGOs are given more access to the WTO as this will assist in making it more representative and transparent. This paper agrees with most authors of the vast literature that supports the idea that NGOs can boost the WTO's legitimacy and alleviate its democratic deficits.
On first examination the WTO appears to be functioning democratically especially with regard to the equality criterion but in other areas some of its Members are not able to control the WTO or cannot be said to have political control during their participation in decision-making as evident from the Least Developed Countries. From the weaknesses identified in the decision-making process, it is clear that the WTO has to improve in certain areas especially making sure that all Members can equally participate and that the civil society is given a better standing, notwithstanding the fact that they are not Members. In the next Section we critically examine the reform proposals that can improve democratic representation and participation in the WTO.
Reform proposals for a more democratic WTO
As shown from the discussion above, the WTO does not provide for sufficient levels of participation and transparency that are essential for a totally democratic IO. Arguably there is need for a number of tangible, procedural reforms in order to create a democratic WTO with transparent decision-making procedures and easily accessible to NGOs. Aware of being perceived as undemocratic and illegitimate, the WTO altered the actual practices of consensus building resorting more to country coalitions playing a role as joint-representative platforms for the concerned Members in decision-making processes. The WTO cannot act without the consensus of all its Members towards reform of the green room meeting practice and new rules governing the criteria of who participates in such meetings. Members are aware of the need to reform the WTO, stressing the need for greater procedural transparency, inclusiveness of Members irrespective of their levels of development in the Geneva process and at Ministerial conferences. In view of the possible role that can be played by non-state actors including NGOs, this paper proposes that WTO operations be reformed just like the GATT was, in order to carter for the realities of today's increasingly democratised world.
In order to be more democratic, the WTO needs to improve its internal transparency to match the transparent reporting rules that its Members are obliged to observe when implementing WTO policies. Notably the WTO treaty does not impose similar democratic requirements of transparency on the Organisation nor grant individuals a right to information save for Annex 3 of the Understanding on the Rules and Procedures Governing the Settlement of Disputes which obliges a Member upon the request of another Member to provide a non confidential summary of its submissions that could be disclosed to the public. This paper notes that since most Members do not abide by some existing WTO rules on reporting, it would be surprising for them when meeting under their creation (the WTO), to oblige them be bound to act transparently internationally when they neglect doing so at a national level.
It is clear that the WTO is faced with most of the problems previously faced by the GATT for instance ensuring that all Members particularly the Least Developing Countries can participate efficiently and secondly, that it engages more with NGOs who could arguably represent disadvantaged population in certain Member states, and also act as checks for transparency at the WTO. As Bacchus asserts more can and should be done to improve on the democratic governance of the WTO, especially in how Members build consensus. In that respect, WTO Members have taken greater efforts to make the consensus building processes more transparent by means of better notification to all Members about informal consultation processes and by affording the public greater access to the published results of decision-making. This is a commendable move towards increasing democracy at the WTO since all Members need information about ongoing consultations so that they decide whether to participate.
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Several authors have proposed ways in which the WTO can be made more democratic and this paper briefly highlights them as follows. Atik proposes requiring democratic practice within states as a condition of WTO membership, introducing a WTO parliament, and creating a new law-making body removed from the negotiating rounds. While Charnovitz canvasses various ‘cosmopolitic' strategies including giving NGOs a chance to speak for themselves at the WTO, greater transparency and publicity, and parliamentary participation. Sutherland chaired a Consultative Board charged with examining the future of the WTO in terms of its institutional challenges, released the Sutherland Report which recommended the creation of an executive body in the form of a ‘senior level consultative body' along the lines of the Consultative Group of Eighteen (CG18)-which wound up in 1990 in the GATT, but without any executive or negotiating powers and it is difficult to see how this could bring any changes in the current situation with respect to the executive function.
Herein we expound on two proposals from those suggested above that may arguably make the WTO more transparent and representative. As Stein asserts the participation of citizens in the WTO is probably one of the basic rights protected by general international law under Article 25 of the International Covenant on Civil and Political Rights which guarantees the right to participation in public affairs. Thus the methods we look at revolve around involving national citizens either through their Parliaments or through NGOs that were presented earlier as being the voices of those citizens whose views are not put across by their governments at the WTO. It is noted that most of the Members are mainly concerned with building the capacity of the Least Developed and Developing Countries that are not yet able to put across their views and not the participation of non-members such as NGOs, although the later could arguably boost those Members' capacities. The proposals considered herein include: firstly, using Members' Parliaments and secondly, closer monitoring and supervision of its activities through increased NGO participation. The paper analyses these two possible reform proposals in detail in order to determine whether they could make the WTO more democratic WTO in this section.
That the WTO may arguably become more democratic when political influence within the processes of decision-making is equally accessible to affected parties, and not only restricted to states that use it mainly as a forum for trade regulation. The WTO still appears to operate secretly outside the scrutiny of Members' parliaments and the public. Esty advocates for better communication and introducing civic participation in the form of national parliamentary oversight of the organisation and connection to the public through NGOs. In this part we deal with the role that parliaments may play in democratising the WTO. Stein contends that democracy is not observed at the WTO when laws are made at the WTO and then enforced directly in the domestic legal order without the national parliament's formal and explicit approval. Parliaments cannot oversee the deals made by civil servants at the WTO and yet these civil servants serve their states by informally concluding arrangements with their colleagues elsewhere. According to Von Bogdandy democracy is compromised by an absence of national parliamentary deference to government measures issuing from international treaties and deficiencies of information in national arenas about the WTO.
In order to improve democratic governance of the WTO, Members must ensure that their actions as the WTO reflect the democratic will of the world's peoples as manifested not only by the Executive branches but also in the legislative branches of the many democratic governments of WTO Members. Bacchus advocates for involving more legislators within individual states in a more effective way in the making of national trade policies that are ultimately transformed by international trade negotiations into international trade agreements. Notably Bacchus' argument is premised on the American model of democracy although he recognises that other Members have domestic policies that are similarly democratic which can be adopted as well. In case the parliaments of various Members are engaged in the WTO proceedings, it is likely that there will be improved representation and accountability to the citizens who are usually the ones who elect the parliamentarians. Thus as Stein asserts there is need for ample flow of information from the national delegation at the WTO to the legislature in order for the later to perform its supervisory role effectively.
Improved Liaison with NGOs
The General Council in line with Article V: 2 adopted Guidelines for Arrangements on Relations with Non Governmental Organisations, which provides in Section I and II that WTO Members recognize the role NGOs can play to increase the awareness of the public in respect of WTO activities and that they agree to improve transparency and develop communication with NGOs. Due to this, country delegates and NGOs are able to talk informally about their views on the proposed policies and negotiating process within the WTO. Clearly, NGOs were allowed to voice their concerns to the delegates at the WTO, but have no guarantee that their voice will be heard, because of the special character of the WTO as an intergovernmental treaty binding only its Members and as a forum for negotiations. This character means that it is impossible for NGOs to be directly involved in the work of the WTO or its meetings. NGOs involved in areas including trade, environmental protection human rights, and development are accredited to attend Ministerial Conferences and plenary sessions; although as Footer observes opening up the WTO to NGO participation may be limited in practice if it is restricted to invitation-only events such as these. Notably NGOs interested in business have more access to the WTO as shown by their major accreditation to attend the Ministerial Conference in Hong Kong. Most of these accredited NGOs are based in developed countries but mainly exist to protect the interests of developing states. Notably as Boyle and Chinkin argue states' alliance with NGOs may enhance the profile or capacities of some apparently weaker developing states within the WTO and diffuse centralised state power. NGOs have played a crucial role in opening up TH WTO and other IOs to the scrutiny of public opinion.
Similarly, since the interests at stake in the WTO may change as it develops; it seems problematic to restrict access permanently to decision-making to only states. In order to boost its transparency, the WTO has posted policy documents and other reports in technical and lay language on its website. Partly due to this, the Warwick Commission contends that the WTO has worked hard to improve internal transparency since the Seattle Ministerial meeting that ended amidst chaos and violent demonstrations by NGOs and that it is ahead of other IOs in this regard. The publication of information has boosted NGOs' and the public's access to WTO information although criticisms arise that not everyone can access these internet resources especially in the Least Developed Countries. It remains a commendable positive measure since a lot of official documents are now derestricted so that the WTO is more open and transparent. However more needs to be done to open up the Member state dominated arena to NGOs. Although this will depend on its Members whom as Bacchus expounds constitute the WTO which remains an international assertion by individual states that they remain the most significant political actors in the world.
Given that it is very important to integrate NGOs into the legitimatisation of WTO decision-making, this paper asserts that what the Members have done with regard to participation by NGOs so far is inadequate. The Organisation needs to be opened up more to NGOs in order to in fulfil the democratic criterion set in Section 1. The drafters of the ITO Treaty envisaged space for participation of NGOs which the drafters of the WTO emulated in drafting Article V: 2 although NGOs still do not have a participatory role in the WTO and only lobby national delegates as shown by NGOs including Oxfam International and Médecins Sans Frontières which were very effective in communicating the needs of those affected by individual patent rights and ultimately an improved solution was developed at Doha. NGOs were also instrumental in the nineties in preventing the Organisation for Economic Cooperation and Development (OECD) from adopting the Multilateral Agreement on Investment (MAI) which treaty only sought to protect foreign investors while restricting the ability of governments to legislate in public interest. This paper argues that the WTO can and should engage with NGOs, and allow for direct NGO involvement, more than it is currently doing since there is arguably no reason why selected NGOs are not granted participatory, consultative or observer status in WTO decision-making bodies as it is with the UN, the International Labour Organisation (ILO), and other IOs.
Barriers to implementing proposed reforms
The main barrier to the proposed reforms is possibly the lack of states' interest in implementing them because it is the Members that ultimately determine how the WTO operates. Most of the Members whether developed or developing states, do not want NGOs to have a more active role in decision-making as discussed above and would rather have them as observers or participants at informal receptions and not at the real forum of decision-making. Members justify their reluctance to give NGOs a better status arguing that the WTO is different from many other IOs because concluding trade negotiations successfully necessitates national delegates to subordinate certain national interests such as the environment and human rights, in order to achieve marginally acceptable compromises that require tradeoffs. It is possible that even the WTO Members question whether opening up their decision-making to NGOs would make their IO work efficiently or even democratic. Loy asserts that governments might need to conduct actual negotiations through government-to-government exercises necessitating the closure of many sessions to NGOs and other non-state actors. Furthermore granting NGOs a participatory role at the WTO will possibly require several significant changes to the WTO Agreement and the way the WTO is governed, which is why it is not being taken up by Members of the WTO. How far the WTO is willing to open up to NGOs participation remains totally at the discretion of its Members and any bid towards democratisation of the WTO through NGO participation is likely to fail if it is not supported by all Members.
The Sutherland Report recognizes the importance of the WTO being perceived as democratic and that dialogue with NGOs would help to promote the image of the WTO as an effective and equitable organization. However as Boyle and Chinkin argue allowing NGOs more access to WTO decision-making entails logistic difficulties greater meeting space, time, wider production and distribution of materials. It is questionable which of the thousands of existing NGOs with diverse interests would be let in and whose actions would constitute the actions of all NGOs. Arguably having considered all these issues, the Sutherland Commission did not find it necessary to address the area of dialogue with NGOs, nor find it a major hurdle to the WTO's fulfilling its objectives. The Report notes that the WTO, as an IO founded on contractual commitments negotiated amongst its Members, is limited to how far it can go in involving NGOs in its deliberations and processes. The Report illustrates the Members' perception of NGOs as undemocratic, unrepresentative, and not transparent yet they expect states working under the WTO to be democratic and work on diverse issues yet they (NGOs) work on a limited issues. This is evident from the fact that the Sutherland Report did not offer any substantial improvements in the degree of WTO's engagement with NGOs but simply called for streamlining and further developing the existing forms of engagement, with an emphasis on the Secretariat's (as opposed to WTO membership's) relations with NGOs.
Further, in a globalised world dominated by internet transactions, faceless and nameless individuals and groups lacking supervision and accountability, exercise power within NGOs. The idea that NGOs can boost representativeness of the WTO is likely to be weakened by the fact that NGOs may not be able to improve elected official representatives of Governments and should not promise more than they can offer. NGOs may ensure that citizens participate in decision-making that affects their wellbeing and lives but it remains debatable since the government delegates at the WTO are in most cases elected by those citizens that NGOs claim to represent. Nonetheless NGOs should be given a chance to prove their worth in pursuing their agendas, as they have succeeded at other IOs such as the UN and ILO.
In light of these contentions about NGOs' legitimacy, it is not surprising that the states at the WTO remain the only decision-makers, though if the NGOs are reformed and made as transparent and as accountable as suggested with regard to the WTO herein, they may be allowed to participate. As Stein notes NGOs can play a useful role when they are do not resort to violence and if they become democratic in their organisation and transparent in respect of their constituency, internal proceedings and sources of funding.
Ways of overcoming the barriers
In order to address the challenges identified above and states' legitimate concerns over allowing NGOs unrestricted access to WTO decision-making processes, procedural screens may be instituted to allow NGOs to participate in their areas of expertise and in which they can adequately represent the public. Ultimately, enhanced NGO participation should ensure that in trade regulation by the WTO, where States are often perceived as inadequate representatives of public interest, international law develops in a way that will be of benefit for current and future generations. Addressing the challenge of more NGO involvement in the activities of the WTO, the 2005 Sutherland Report on ‘The Future of the World Trade Organization' noted that the primary responsibility for engaging civil society in trade policy matters rests not with the WTO but with its Members.
As Bosscheobserves even though the Sutherland Report did not argue for more engagement with civil society, the justified concerns about the legitimacy and the politics of NGOs was mitigated by the WTO's introducing a system of accreditation. Thus if the WTO really wanted NGOs to participate in WTO activities either directly or as observers, the WTO Members could easily emulate the UN which granted certain NGOs observer status at the UN. NGOs should be accepted by WTO Members as possible key players and partners since they continue to evolve into a stronger and more vocal force in international policy-making.
NGOs should emulate states at the WTO and engage more in coalition building with each other so that their diverse views are complied together as a concerted voice. This might ease the mistrust that WTO Members have of NGOs and maybe the NGOs will then be granted a participatory role with voting rights at the WTO. Although as noted above, it will depend upon the Members accepting the NGOs into the WTO as participants.
In order for the WTO to become more democratic there is need to implement the reforms proposed herein and this may be facilitated by the individual Member states' themselves becoming more democratic. The WTO will be able to implement the national parliament oversight and also accept NGOs to participate in the WTO. Working together with NGOs is likely to boost the least developed Members' capacity to participate in decision-making. As a result of its institutional structure and the exercise of its executive function by a politically-driven collective membership, the WTO is prone to member-domination as shown in Section 2. The WTO Members' continued exclusion of NGOs from formal aspects of decision-making misses the legal, political and social reality and impact of NGOs' increased participation on states and their IOs' behaviour whether it is seen as favourable or otherwise. Thus the WTO needs to be transformed to take into account conditions of contemporary international society including for example, the decline of the state as the sole international player while its Members ought to review their remaining the sole decision-makers in IOs and should recognise that NGOs could boost the formulation and evolution of international law.
As shown in Section One with the emergence of WTO from the GATT, the later was reformed and amended to safeguard trade among nations for generations in both the present and future, the same can and should be done to the WTO. Since Members are still the main decision-makers at the WTO, they must produce written, transparent and accountable rules of decision-making in the WTO that address day-to-day WTO negotiations, preparatory process for the Ministerial and the General Council meetings.
The WTO still has a distinct role to play as an IO that facilitates international trade discussions and debate of regardless of how it is perceived with respect to democracy. It remains an important place for the conduct of international trade politics. As Held states it is necessary to open up the WTO as a functional IO to public examination and agenda setting by NGOs and other non-state actors. This has been done to an extent by the WTO when it organises conferences and publishing information for NGOs and the public but a lot more needs to be done to boost the democratic element of transparency, representation and participation by all Members and the general public therein.
With its present structure, the WTO is not a typical IO and remains a meeting place for discussion among members in order to coordinate trade policies with institutional characteristics. This forum is shaped disproportionately by the agendas of leading states in country coalitions; a trend that might require review so that all countries' interests can be realised.
In light of the preceding analysis this paper recommends that WTO Members devise inclusive and transparent mechanisms to build consensus amongst them rather than resorting to an "exclusive club" of Members in green room meetings. Additionally developed countries should stop using bilateral political and economic pressures on developing countries to agree to proposals from their developed counterparts at the cost of their real development concerns. All Members should be able to participate in decision-making. In order to monitor and eliminate power politics, there is need to devise an effective democratic consensus building mechanism where proper minutes including dissenting views and negotiating texts of all meetings are circulated amongst all Members. Voting as set out in Article IX:1 must be used if there is no consensus.
It is not the WTO that can make its self more democratic but the Members themselves since it remains one subject of international law that is highly dominated by its Members, who use it as a forum for conducting international trade negotiations. In seeking to increase democracy at the WTO and improve its legitimacy, Bacchus asserts that the focus should be on trying to create a new international mechanism to supplement those already existing and are already being improved within the WTO. Democracy should be intensified within and between Members - a development which is essential if democracy is to retain its international relevance and legitimacy in future and not just a ‘label', that IOs like the WTO can claim. This will also lure Members to appreciate that they can allow other non-state entities to participate for the sake of democratic governance and representation. Thus if the Members are themselves more democratic at a national level, then this will be reflected in the expression of these policies by their national delegates in their international deliberations at the WTO.
As Footer points out, the overall conclusion in international institutional terms is that the WTO does not fulfil the requirements of an IO that has a will of its own separate from that of its individual members and is able to act or function separately from its Members. Thus even democratising the WTO will require all Members of the WTO to act together to shape the organisation in that direction. For example this paper notes that different scholars and NGOs have called upon all WTO Members to reject green room and "exclusive" mini-ministerial meetings where only a select group of WTO Members are invited to discuss the WTO agenda behind closed doors. However as we discussed above, it is almost impossible to do away with the practice unless all the Members agree to it.
Additionally as the case is with national governments, if NGOs are given greater access by Members into the WTO, they may act as the voices of the public in some un-democratic Member states, regardless of those countries' level of development. In this way, NGOs will contribute to strengthening democratic governance of the WTO. As participants they can perhaps contribute in a constructive and critical way by assessing the democratic performance of institutions through oversight of, and dialogue with, the different bodies of the WTO. If NGOs are allowed to participate, they will not resort to violence to get their views heard and in the process be seen as trying to bully states to give in to their whims and wishes.
In Section One, this paper briefly acknowledged that the Dispute Settlement Process possibly illustrates a forum in international law where new avenues for greater NGO participation in WTO decision-making are evolving. These evolutions may stimulate similar reforms in other parts of the WTO for example at the WTO Ministerial Conference. Clearly reform will depend on the Members' acquiescence to the proposals.
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