Tracking decision-making at the World Trade Organization, never easy, got harder this year.
The chairs of three major negotiations have opted not disclose “draft texts” — key summary documents that reflect progress to date and lay the foundation for further discussions.
The first episode occurred this summer, when Gloria Abraham Peralta, Costa Rica’s ambassador and WTO agriculture negotiations chair, circulated her first draft negotiating text, labelling it “restricted.”
It was the first time for such secrecy since agriculture negotiations began in 2000, reported Peter Ungphakorn in his WTO-focused publication, Trade β Blog.
Earlier this year, “restricted” status was given to the so-called “Easter text” that summarized the status of talks on “investment facilitation,” being coordinated by Ambassador Mathias Francke of Chile.
In both cases, no explanation was provided for the secrecy, which appears to be allowed, though not explicitly, by WTO rules. The rules let WTO member governments restrict public access to their proposals and position statements. Members have passwords that allow them access to restricted material. Committee meetings are closed.
Even meeting agendas are generally kept confidential, such as the one for the Trade and Environmental Sustainability Structured Discussions (TESSD) held in May.
Some committee chairs, however have made their draft texts public.
The chair of the fisheries talks, Ambassador Santiago Wills of Colombia, circulated unrestricted draft texts, the latest on June 30, as Ungphakorn reported.
Another restricted draft text concerns e-commerce, the talks chaired by Ambassador George Mina of Australia.
A detailed look at transparency at the WTO was written this year by Ungphakorn and Robert Wolfe, Professor Emeritus of Policy Studies, Queen’s University, Kingston, Ontario. More on their veteran perspective below.
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Restricted Texts Leak Out
Writing about the agriculture draft, Ungphakorn said, “The reasons behind the secrecy are unclear.”
Ungphakorn, who worked at the WTO Secretariat from 1996 to 2015, said, “It does suggest the WTO membership and its leaders are nervous about the prospects over the coming months.” Ungphakorn speculated further, “It may partly reflect the fact that many proposals submitted by members are also “restricted”, but in the past that has never prevented chairs from drawing on the proposals in their own publicly-available drafts.”
The WTO published a long description of the agriculture negotiations on July 29, but did not link to the text. On July 30, Ungphakorn published the leaked text and analyzed it (here). “The downside is that the secrecy could make matters worse because public support is needed if members are to find the political impetus to compromise,” he wrote.
The WTO summary refers to “a spike of new submissions (14 in total)” that presented in the ten days preceding the introduction of the chair’s text. “The submissions sparked intense debate among members,” the summary states. “While views remained divergent on several issues, including some fundamental ones such as the approach to be followed on domestic support, public stockholding or the special safeguard mechanism, many members emphasized their willingness to explore ways to narrow gaps and seek common ground,” the press release concludes. The submissions themselves are restricted.
The other example of a restricted text concerns the “investment facilitation” talks, aimed at making conditions easier for domestic and foreign investors.
The draft text for these talks, known as the “Easter text,” was mentioned in an April WTO “news story” and in subsequent WTO updates on the talks, the latest coming in September. But no link was not provided to the document, which the WTO termed “the negotiating document serving as the basis for the negotiations .”
The WTO news stories describe the talks in general terms such as “making useful headway” and “a rich discussion.” Ideas are mentioned without usually identifying the sponsors, such as: “Delegates also discussed a recently submitted proposal on the inclusion of a new provision on “home state obligations’ aimed at recognizing the role of “home states” in facilitating outward investments.”
A leaked version of the Easter Text dated July 23, appeared Sept. 16 on a website, blilaterals.org, a clearinghouse of information and analysis about trade agreements.
Lack of Transparency Lamented
Frustration with the lack of transparency around the investment facilitation talks was recently voiced by Sheela Rai, a professor at National Law University, Odisha (India), in an article in The Deccan Herald.
“The negotiating proposals and developments in the negotiations have traditionally been uploaded on the WTO website,” she explained. “This enabled any interested person to study them and comment upon them through academic writings or newspaper articles,” according to Rai, who has followed the investment facilitation talks.
“The process, however, has undergone a change,” she said, “Nowadays, many of the important documents relating to the ongoing negotiations have restricted access.”
Never-Ending Restriction Option
The WTO’s “procedures for circulation and derestriction of WTO documents” provides for the restriction of documents submitted by members.
Despite proclaiming that “all official WTO documents shall be unrestricted,” the two page document, issued in 2002, undercuts that goal with exceptions.
Most notably, member governments “may submit a document as restricted, which shall be automatically derestricted after its first consideration by the relevant body or 60 days after the date of circulation, whichever is earlier, unless requested otherwise by that Member. In the latter case, the document may remain restricted for further periods of 30 days, subject to renewed requests by that Member within each 30-day period.”
In other words, “restricted” status is available for the repeated asking, without limit.
Moreover, the rules apply to formal documents, and there are many other kinds: “JOB” documents, room documents (RDs) and “airgrams”. If they are circulated as restricted, they stay restricted forever.
The entries on the WTO website about the Agriculture Committee are all “restricted.” WTO members have log-ins so they can view the restricted material.
The 2002 rules do not address the topic of secrecy for draft texts.
Secrecy Trend Seen
Law professor Rai has seen a trend.
“Up to couple of years back most of the documents on ongoing negotiations were unrestricted,” she said in an e-mail interview with EYE. She explained:
But now they are restricted. Like the Agreement on Investment Facilitation that is being currently negotiated. I had accessed many member’s proposals a couple of years back before writing piece in Deccan Herald on the desirability of the agreement. But now most of the proposals and chair’s draft text are restricted.
The WTO website has several press releases this year about the investment facilitation talks.
The discussions are taking place within a sui generis body called the “Participants in the Joint Statement on Investment Facilitation for Development initiative.” It operates despite not having an approved mandate from all WTO members although more that 100 countries are participating.
There is a section about the talks on the WTO website, but it’s only accessible to WTO members.
WTO Transparency Examined
A detailed look at transparency at the WTO was written in April 2021 by Ungphakorn and Robert Wolfe, Professor Emeritus of Policy Studies, Queen’s University, Kingston, Ontario. Read their four-part series here. While they support ome confidentiality during negotiations, they call for much more WTO transparency.
They trace the history of WTO transparency with plentiful examples, saying that a better understanding of the WTO can generate public support necessary to provide legitimacy.
They note that “even information that is supposed to be confidential finds its way into the public domain.” Leakage, they observe, “is a biased activity because it is selective,” “provoke controversy and heighten suspicion,” and “reinforces the WTO’s reputation as a secretive organisation.” Briefings by governments of vested interests occur, and are necessary for the formation of positions, but “[T]hese consultations also mean negotiators can be criticized when business groups seem to know more about what is at stake than either citizens or their elected representatives.”
Their detailed overview describes topics such as the rise of “unofficial documents,” how the WTO press office has provided information about negotiations and the slow pace of issuance of General Council meeting minutes. They comment that “media interest in the substance of WTO work is now almost non-existent (apart from a handful of legal disputes).”
In parts two and three of their series, Ungphakorn and Wolfe explore the value of confidentiality and address “the real question,” which they say “is not whether to be transparent or secretive, but what is ‘too much’?” Again they rely on examples from past trade talks for their analysis. They state that “it is impractical for transparency to mean that every thought, conversation, note and negotiating tactic by any official should be instantly on the public record.”
They conclude with a. dozen suggestions, beginning, “Much of what the WTO and its Secretariat do is already pretty transparent, but there are areas that can be improved.”
First on their list:
The default for official WTO documents, and some unofficial ones, is already that they should be available publicly. This needs to be strengthened.
They say delegations “should be encouraged to release their proposals publicly much sooner,” but don’t suggest that all member documents should be released immediately.
During negotiations, they state, “chairs’ consolidated texts should be public documents, unless there is a real reason to delay release.“ They observe, “There is no evidence that publication has any impact on the negotiations except to improve public understanding and possibly support.”
Officially restricted information, they point out, also gets revealed by governments when they brief their politicians and economic actors. “The practice is necessary because trade negotiators cannot make it up: they cannot understand their country’s interests in a given negotiation, either strategic or technical, without talking to traders and activists in conversations that will inevitably be confidential. Sometimes participants sign formal non-disclosure agreements.”
However, they observe, “These consultations also mean negotiators can be criticized when business groups seem to know more about what is at stake than either citizens or their elected representatives.”
There can be a light side to the complicated picture of partial darkness.
“Among the odd effects,” Ungphakorn and Wolfe reflect, “is that when WTO Secretariat conducts non-attributable briefings for journalists about off-the-record meetings, officials must refer to specific articles in a undisclosed draft texts, though they may be out in bootleg versions.”
