WTO reform: 39 members call for more information to be made public

By Peter Ungphakorn

The following article is reprinted with permission from Trade β Blog, an independent blog started by Peter Ungphakorn, who worked at the WTO Secretariat (1996–2015) and is now “an occasional freelance journalist, focusing mainly on international trade rules, agreements and institutions.” The article was posted July 23, 2023.

The last General Council meeting before the 2023 summer break at the World Trade Organization (WTO), on July 24 and 25, received several documents on WTO reform. Some of them deal with public information and transparency and deserve more attention.

Why is this important? Here’s an example.

One of the most recent developments in the WTO is agreement on an almost-final text among participants negotiating new rules on investment. The deal would streamline investment procedures for the benefit of developing countries — Investment Facilitation for Development.

Ask anyone involved and they will speak glowingly about how useful this is going to be. The world at large has to take their word for it because the text is still secret. Ask “Why is it secret?” and the answer is because it’s not completely final.

And yet the biggest task of all for this group of like-minded participants is to persuade other members to join in, or at least not to block the deal. That’s what they are about to try over the coming months. Among the countries they will have to persuade are India, South Africa and the US.

To muster support for this or any other deal, governments have to win over various groups inside their countries. To use the jargon, they must engage with their stakeholders. And that means sharing information with them and probably with the public as a whole. Keeping the text secret does the opposite.

Oh, and by the way, the Investment Facilitation draft has been leaked — as often happens with 164 WTO delegations and hundreds of people involved.

Leaking is not a satisfactory solution. It’s selective and therefore biased. And it defeats the purpose of keeping texts confidential. They might as well just release the texts.

Engaging With Stakeholders

Two papers in the July 2023 General Council meeting discuss working with stakeholders.

One, from Australia, China and Thailand, is called “Small Steps to Make a Difference” and was first issued by China alone in May 2023, the other two signing on in May and June. It includes a section on “External Engagement”, which begins:

“[The] WTO needs to be better understood and supported by external stakeholders. Effective external engagement could be a useful way to ensure [the] WTO’s relevance. For this purpose, a review and evaluation of current external stakeholders’ engagement could be a good start for further improvements.”

Another from nine members deals specifically with “Improving Inclusiveness by Reviewing and Evaluating External Engagement”. It observes that the WTO is not as good as other international organisations in engaging with interested groups and calls for a review of how to improve this:

“Despite success in some areas, opportunities for sustained multi-stakeholder engagement at the WTO and within WTO Committees appear to significantly lag global best practice as established by other international organizations, international financial institutions, and development assistance providers.”

In the past, members have stressed that the main responsibility for working with interest groups lay with their own governments, not the WTO.

This paper speaks of “members’ experiences with inclusive external engagement in other international organizations”. It is not so clear about the distinction between what members do themselves at home, and what the international organisations do with or without the members.

The paper was first issued in April 2023. By July its sponsors were: Colombia, Guatemala, Israel, New Zealand, Peru, the Philippines, Taiwan, Thailand and the US.

A month before that (on June 21), WTO Director-General Ngozi Okonjo-Iweala announced she had set up two advisory groups, comprising business and civil society leaders.

But not all businesses agree with their international leaders. Nor do all civil society groups. And there’s an overlap in WTO issues such as agriculture. Farmers’ groups can be both “business” and “civil society”.

Engaging with groups outside the WTO is only possible if they have the information. They cannot respond if they don’t know what’s in the proposed Investment Facilitation Agreement, or what’s being negotiated on fisheries subsidies that contribute to over-fishing, or what members are discussing on reforming dispute settlement, or anything else they’re supposed to be advising on. None of these are available to the public.

Officials’ instinct is not to talk to the public. Sometimes confidentiality really is needed.

But at eventually secrecy becomes counterproductive because it arouses suspicion and erodes support.

On the other hand, there is little or no evidence that openness hampers progress in the WTO. When the WTO agriculture negotiations broke down in 2008 or part of the fisheries subsidies agreement had to be set aside in 2022, there was no evidence that releasing earlier drafts of the texts had anything to do with the deadlock.

There are two ways to give stakeholders information so they can engage properly: leaking it to them selectively, or making it widely available to the public.

Governments regularly leak to selected groups — usually under non-disclosure agreements. This leads to accusations of bias because it’s usually the most powerful lobbies that are favoured.

Derestricting WTO documents

One new proposal aims to make the WTO more open by increasing the information that is immediately available to everyone. Its focus is on derestricting WTO documents.

Its sponsors are Australia, Brazil, Canada, Colombia, Costa Rica, the EU, New Zealand, Norway, Switzerland, Taiwan and the UK. In the July 2023 General Council meeting, the US said it would add its name. That would bring the total to 39 members (counting the EU as 28).

Crucially, the proposal does not deal with negotiated draft agreements. Nor does it end the practice of keeping some unofficial documents secret forever. (These are restricted documents in the series “JOB” or “RD”, which escape the standard derestriction rule for more formal WTO documents.)

But it does come close to a set of proposals in an article co-authored with Robert Wolfe two years ago.

The new document proposes that many other important documents are released to the public immediately, or faster than at present.

They include meeting agendas and notes added to the agenda headings, a wide range of reports by the WTO Secretariat, and documents that members want to be released related to their own individual commitments (known as “schedules” of commitments) to open up their markets.

Also targeted are reports to formal meetings by chairs of committees and negotiating groups and by the director-general, which in any case end up in the public domain in the meetings’ minutes.

“We see no compelling reason why these must be kept restricted as they are formal statements explaining the state of our work,” the proposal’s sponsors say.

Some parts of the WTO website that are currently only visible to members’ officials should also be made public, the paper proposes.

“A lot of anodyne but potentially useful information on e-commerce, for example, is hidden when not signed in as a member,” it says.

It also calls for minutes to be released to the public more quickly.

Sources say the proposal was simply presented in the July 24–25, 2023, General Council meeting as one of many under “WTO reform”. There was no discussion.

The proposal in its official form is here. It starts with a few opening paragraphs, but its main content would revise the present rules on derestricting documents, WT/L/452 from May 2002.

In the document, the proposed revisions are images (screenshots) of tracked changes and comments.

Below, the whole proposal is presented in text, with some editorial explanations in square brackets and italics. (Note that the US announced in the General Council that it would add is name to the proposal.)

The General Council,

                Noting, in the context of WTO reform, the value of increasing ease of access to official WTO documents, particularly those regarding agendas, for improving understanding of the WTO and facilitating access for a broader of array of governmental and non-governmental entities;

                Desiring to build on WT/L/452 of 16 May 2002 as envisaged by the General Council at the time this decision was taken;

                Further ensuring that WTO documents will be publicly available, except in limited circumstances;

                Decides to amend/revise WT/L/452 as follows:

WORLD TRADE ORGANIZATION

WT/L/452
16 May 2002

(02-2719)