How wide should the WTO window be set? 2 External transparency

With the clamour to reform the World Trade Organization it’s time to re-examine how its information is handled. Second of four parts: external transparency

There is no darkness but ignorance | Jay Louvion, WTO

Madman, thou errest: I say, there is no darkness
but ignorance

          ― William Shakespeare, Twelfth Night, Act 4 Scene 2


By Peter Ungphakorn and Robert Wolfe
POSTED APRIL 26, 2021 | UPDATED MAY 29, 2021

IN THIS 4-PART LONG READ
1. Introduction | 2. External transparency | 3. Negotiations and the constraints on transparency | 4. Does transparency help or hinder?

See also: The short version

An organisation like the World Trade Organization provides public information primarily for accountability. A better understanding of the WTO can also help generate public support, at least for the system, even if not necessarily for all of the trade rules it produces. Accountability and approval give the organisation legitimacy.

The WTO is, after all, funded by taxpayers via governments’ contributions to its budget. The WTO’s relevance depends on governments complying with the agreements they negotiated. It relies on their commitment to modernise the system through new negotiations. To achieve both of those, WTO governments need the support of public opinion.

This works at several levels and raises several questions. Does the WTO resonate well domestically with the public, farm lobbies, business interests, and others? Are officials around the world, in rich and poor countries, learning about what is at stake, as they work on domestic issues — from agriculture and state aid to banking and the environment?

Accountability and support are the reasons why we believe external transparency — allowing citizens to know — should be the default in the WTO. But we also believe some time-limited constraints are needed for work in the WTO to produce results, particularly in negotiations. We discuss those constraints in part 3. First, a closer look at how external transparency operates in the WTO.

Continue reading or use these links to jump down the page
How does external transparency work? | How is this haphazard? | Who is responsible: members or Secretariat? | What about restricted external transparency? | What are they going to talk about next time? | What did they talk about last time? | What about disputes? | Are we talking about “comms”? | Next

How does external transparency work?Back to top

The need to keep the public informed — at least to some degree — has been recognised explicitly since the WTO was set up in 1995 and particularly since the disastrous 1999 Seattle Ministerial Conference. A better-informed public may mean more public support. On the other hand, as has been recognised since those early years, a WTO that looks secretive arouses public suspicion.

In one respect, external transparency has been central to the multilateral trading system all along, since 1948, when the General Agreement on Tariffs and Trade (GATT, the WTO’s predecessor and still its treaty on goods) was created.

This is about rules and policies. GATT (the agreement) itself was published immediately. Its Article 10 (on “Publication and Administration of Trade Regulations”) says countries’ rules affecting trade must be issued promptly, and governments must administer those rules openly (see the start of Henry Gao’s research paper).

The purpose is to ensure that the trading world can operate within a predictable system, such as knowing what tariffs will be charged on imports and the limits on how high a government can set them.

But in the GATT years, only the agreements themselves and how governments implemented them were public.

Whether outsiders needed to know where those rules came from — how they were negotiated — always had a lower priority, at best. Certainly none of the documents in GATT negotiations were public, although they were leaked.

During the 1986–94 Uruguay Round negotiations the GATT Secretariat produced “News of the Uruguay Round”. But the contents were technical, and written like official minutes. They featured chains of references to previous meetings. They were only meaningful to experts who were familiar with the jargon and who had followed every detail from the start.

That changed after the Uruguay Round created the WTO in 1995, followed by its website, its online databases, external demands, and the institutional recognition that transparency and accountability are essential for public support.

Even information that is supposed to be confidential finds its way into the public domain. An organisation with well over 100 members, each with scores of officials involved, leaks like the proverbial sieve.

The problem is that leaking is a biased activity because it is selective. A few leaked texts posted on social media or partisan websites can provoke controversy and heighten suspicion. This would be lessened if the whole context was visible to the public.

The ubiquity of modern online information has also changed the channels of external transparency.

In the WTO’s early years, the focus was on the “press” and non-governmental organisations (NGOs). Even then, the special treatment for NGOs missed the point: the WTO’s legitimacy had little to do with the few vocal NGOs that paid it most attention.

But journalists’ and NGOs’ interest in the WTO has waned considerably. By far the largest external audience for WTO information is a diverse group of “anyone who’s interested” — citizens, lawyers, academics, think-tankers, lobbyists, activists, journalists, politicians, business and industry associations, companies’ trade specialists — through the WTO website, sometimes prompted by social media.

However, the WTO Secretariat’s Information Division still includes a “press” section (now essentially an information function) and an “external relations” section (originally focused on NGOs, now essentially a networking function).

Among the key questions are: does external transparency really hamper WTO work? If so, under what conditions? Part of this is discussed here, and the rest in part 3.

But while much more information about the multilateral trading system is now available to the public, the way openness is applied is still haphazard.

Waning interest: the main media do not really follow the WTO any more | Jay Louvion, WTO
Waning interest: the main media do not really follow the WTO any more | Jay Louvion, WTO
How is this haphazard?Back to top

Take, for example, the agriculture negotiations. In the first phase, from 2000, every single proposal from members was circulated as a public official document. Then the talks quickly slid back into confidentiality. Many later proposals are unavailable publicly.

It’s even been known for delegations to circulate proposals as “restricted” WTO documents (supposedly secret) — perhaps out of habit — and immediately publish them openly on their own websites.

The entire agriculture negotiations now take place in informal meetings, which have no official record. The only on-the-record meetings are for decisions to appoint a new chair. Many proposals are restricted. But so far the chairs’ assessments and draft texts have always been public, sometimes accompanied by a press conference. The talks have floundered, but no one has blamed that on transparency.

By contrast, chairs’ drafts in other negotiations have not been circulated.

Take fisheries subsidies, shortlisted for agreement only months from now at the next WTO ministerial conference, in November-December 2021.

The chair’s drafts are not released publicly, apparently because of “WTO practice” — perhaps true of fisheries subsidies but not of some other WTO talks.

(UPDATE: That changed on May 11, 2021, when the chair, Santiago Wills, released a revised text publicly for the first time.)

Worse, the WTO Secretariat’s non-attributable briefings for journalists on what was discussed on fisheries subsidies — part of its effort to keep the public informed about off-the-record meetings — were forced to refer to specific articles in a draft text that the Secretariat could not reveal.

This is not a new problem. The Secretariat’s only solution is to point to websites where the leaked text has been published. That used to be the now defunct International Centre for Trade and Sustainable Development (ICTSD, website archived here). Now it’s bilaterals.org, a WTO-sceptical activist website actually contributing to WTO transparency (although one academic has called this “disruptive transparency”).

The fact that restricted draft texts are routinely leaked to external websites reinforces the WTO’s reputation as a secretive organisation. It also means the choice of information that is available can depend on the agendas of whoever leaks and whoever publishes the leaks.

In its effort to inform the public, the Secretariat has produced some unofficial news stories on informal, off-the-record, full-membership sessions, for some negotiations — as well as on formal meetings, which in any case are on the record in the minutes.

The informal meetings are an essential part of WTO work (see part 3). The confidentiality is partly respected in the Secretariat’s news stories by not identifying which delegations said what, except when linked to publicly available papers. Non-attributable briefings for journalists can be a bit more specific.

But sometimes the website’s news story is so sanitised that it says little more than “they met, they talked, they’ll meet again.” The public are none the wiser.

Nevertheless, delegations still question periodically why information on informal meetings is being published. This is one of the issues the WTO Secretariat currently faces, with behind-the-scenes pressure from some delegations. Some of it is from governments that claim to uphold freedom of information domestically.

The diagram highlights what this is about. A lot of information available to members (the blue circle) is also released publicly (overlapping with the green circle). Is the present mix good enough?

WTO info public and restricted
Public v restricted: a lot of information is public, but some key parts are restricted. Click the image to see it full size
Who is responsible: members or Secretariat?Back to top

Some years ago, at an unforgettable ministerial conference, one member said the draft declaration must not be made public until it had been approved by consensus. Moments later delegates from that country were seen handing out copies to their favoured journalists in the press room.

Journalists can be generous with their colleagues and rivals. The photocopiers were soon busy.

Behind that lies a tension in the WTO. Who is ultimately responsible for external transparency: the Secretariat or the governments? Are they equally objective (or biased)?

Normally, it’s the Secretariat, with the approval of the members. In one fraught moment in 1999, when WTO members were at loggerheads over the selection of a director-general, delegates tried to bar the Secretariat’s spokesman from briefing the media, claiming that the rules only allowed the General Council chair to do that:

“The representative of Mexico, speaking on a point of order, said that a member of the WTO Secretariat was providing briefings to the media on this issue in ’real time’. However, as provided for in Rule [33] of the Rules of Procedure, after a private meeting had been held, only the Chairman could issue a communiqué to the media. Accordingly, he requested that the Secretariat refrain from making declarations to the press which had not been previously authorized by the Members.

“The Chairman [Ali Mchumo] said that he had requested Mr [William] Rossier [Swiss delegate and former General Council chair] to follow this up with the Secretariat to see that things were done the right way.” — Minutes, General Council, May 28, 1999

That did not last long. Mchumo struggled in one briefing with the press and handed the role back to the professional spokesman.

When WTO members discussed transparency at length a year earlier, in 1998, several members insisted that it was up to their governments to explain the WTO. Some barely mentioned the Secretariat’s role at all.

One was Cuba, which “agreed with those delegations that believed that if members were seeking to keep their public opinion informed, then each government could do its own work in improving information on what was happening at the WTO,” according to the General Council’s minutes.

But information from governments is not always straight. In the same meeting, then-Director-General Renato Ruggiero accused governments of spinning the facts when they leaked rulings in dispute settlement — the most sensitive area of WTO work — before they were due to be published. That meant the public received biased information. He told the General Council:

“One of the main problems here was not just the disclosure of panel findings, serious though it was, but rather the partisan and inaccurate way in which this was done. This problem was compounded by the fact that [we were] prevented from responding to and correcting these inaccuracies by the rules of the Organization. All this made it very difficult to provide the balanced and full information that was in the interests of all the governments concerned.”

That is an important claim. The Secretariat is forced to be more neutral than individual members because it has to represent all of them, and delegates soon tell the Secretariat if it has misquoted them. But it is constrained in responding to leaked confidential information.

Governments are rarely impartial. Occasionally some of their officials do brief journalists with factual read-outs of who said what in meetings, without a particular slant. But usually they have an agenda.

There’s nothing wrong with that. Delegations spend most of their time arguing their positions in negotiations, in meetings on implementation and in legal dispute hearings. They want their public back home to know that the country’s position is defended. Governments often publish their statements on their own websites.

But that also means that when delegates leak confidential texts the information available to the public can also be biased. Some delegations are more prone to leak than others. Often the leaks go to NGOs that do take sides, have a particular audience, and are more likely to receive documents from delegations with the same view.

What about restricted external transparency?Back to top

The 1998 General Council discussion on transparency included meeting agendas.

“Issuing proposed agendas as unrestricted documents would facilitate member governments’ preparation for WTO meetings by allowing them to use the proposed agendas in prior consultations with their private sectors,” the US said (again, paraphrased in the minutes).

GOVERNMENTS ROUTINELY BRIEF ECONOMIC ACTORS

“The government was responsible for informing us before, during and after negotiation sessions at home or abroad. It was the same for all negotiations — in the WTO, or free trade agreements. It’s all about politics and what they promised voters, etc.

“So every time we’ve asked for a briefing, we’ve received it. Sometimes this took the form of a group briefing, either all industries — where they often remain fairly general — or a small group discussion — when a specific issue targeting a specific industry arises. You usually have both.

“That being said, we are not told everything. So we had to compare what we knew with what they told us. This is why we met different countries involved in the talks — negotiators, politicians, industries from various countries. Some of them were more inclined to share what they had been told by their authorities, and sometimes even the documents and proposals on the table.

“The exchanges we had with the government were more interesting when we asked the right questions. Sometimes the government takes this opportunity to test how far they can go in the negotiation. However in our case, we all signed confidentiality or nondisclosure letters.”

— member of a “stakeholder” group

This highlights a grey zone. Governments routinely brief their politicians and hold confidential consultations with 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.

These consultations are likely to include information and documents that are officially restricted in the WTO. No doubt the US has found ways of telling its private sector what is going to happen in the next meeting even when the agendas are restricted.

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.

In one negotiation, the EU was even under fire from the Americans for sharing too much information with its own member governments, after they complained about the secrecy. Those talks were on a proposed Trade in Services Agreement (TiSA), negotiated by a group of countries on the periphery of the WTO.

In US-EU talks on a Transatlantic Trade and Investment Partnership (TTIP or T-TIP), the two sides agreed in December 2015 to allow more access to “consolidated texts” — essentially both sides’ proposals inserted into a single document. But this allowed EU member states’ politicians and officials exclusive access to the texts, not the public.

(Both those talks, coincidentally, are effectively abandoned, at least for the time being.)

Mists of tradition new institution, new technology, new century, same old airgrams
Mists of tradition: new institution, new technology, new century, same old airgrams
What are they going to talk about next time?Back to top

Are agendas for future meetings public documents? Yes and no.

This really is haphazard. The default is “no”, based on habit rather than reasoning or empirical evidence. It’s one of the WTO’s rituals whose origins are lost in the mists of time.

WHAT ARE AIRGRAMS?

According to Wikipedia, they were communications sent in diplomatic bags instead of by telegram. In 1951, the first ever GATT “airgram”  (of fascinating historical interest in itself) was issued. It was called in French a “telegram by plane”.

Within a few years GATT had settled on a format which is virtually unchanged today.

All GATT airgrams are now public, available here, by scrolling down to “GATT/AIR”. They originally covered a wide range of communications, eventually whittled down to agendas only, as other document series evolved.

Agendas are all drafts until they are approved and possibly amended when the meeting starts. They are circulated in official documents whose name and formatting come from technology that was obsolete before an increasing number of delegates were born.

They are called “airgrams” (code “WTO/AIR”), a word no one understands anymore. They use capital letters throughout as if they were still sent by telex or as telegrams.

And despite that call from the US in 1998, all WTO airgrams remain secret, all 6,000 and counting — forever. The same applies to some other documents convening meetings, such as this one.

However a few committees have bypassed this by issuing parallel documents such as draft agendas with additional notes (some public, some also permanently restricted), or simply called “proposed agenda”.

The “proposed agendas” are all public and are for four important WTO bodies: the General and Goods councils, Dispute Settlement Body and Trade Negotiations Committee. Not the Services and TRIPS (intellectual property) councils.

In non-attributable briefings for journalists, some Secretariat staff used to routinely share the proposed agendas, even when restricted. That now only happens for big meetings where the drafts are public documents.

There is no earthly reason why any of these agendas should still be secret.

Back in 1998, Mexico said by circulating unrestricted agendas the WTO “would not be addressing itself to the man in the street, but rather to the lobbyists, pressure groups and others that had an interest in trying to influence its work.”

The truth is that even before the Internet became a universal source of information, many lobbying groups had no difficulty finding out what was on an agenda. Everyone else was in the dark.

The WTO now has decades of experience with agendas that are public from the start, either officially or through leaks. There is no evidence that this has any effect on the meetings. The only reason to keep them secret is “that’s how we’ve always done it”.

What did they talk about last time?Back to top

What about the minutes, or summary meeting reports (both terms are used)? What about documents discussed in the room?

Up to 2002, most WTO documents were restricted by default and only de-restricted if members asked for them to be made public. Even so, they stayed restricted for a time before becoming public.

A decision in 2002 turned that around. Most official documents are public by default, unless members ask for them to be restricted. In any case most documents have to be public after a while.

All notifications on governments’ trade measures are immediately public (required by GATT Article 10 for goods, GATS Article 3 for services, and TRIPS Article 63.2 for intellectual property).

But a growing number of documents are unofficial, given serial numbers that include “JOB”, or “RD” for room document. RDs were once described as “non-papers”, intended only for a meeting. They were originally unnumbered meaning they could not be catalogued in Documents Online and were therefore unavailable for delegates such as those who did not attend.

Many of these are restricted forever, and yet room documents can be where the most sensitive issues in negotiations surface first.

The 2002 decision says minutes should be public ten and a half weeks (just over two months) after each meeting — first, circulated to members within three weeks, then public 45 days later. Last year (2020), the General Council met seven times. On all seven occasions, by the time the next meeting took place, minutes from the last meeting were still not public. That is also likely to be true with several other councils and committees.

A two-month wait is far too long for most people, who want to know what’s happening “right now”. So, the Secretariat has had to find its own way round restricted official information.

What happened? It’s not always easy to find out what happened in WTO meetings | Jay Louvion, WTO
What happened? It’s not always easy to find out what happened in WTO meetings | Jay Louvion, WTO

Originally, the solution was to brief journalists, on the record for formal meetings, non-attributably if the meeting was informal. Those briefings continue, but as media interest in the substance of WTO work is now almost non-existent (apart from a handful of legal disputes), and as the Internet has become a main source of information for everyone, the Secretariat’s information output is now predominantly via the WTO website.

The WTO website’s “news” is checked for accuracy and published immediately or within a day or two of a number of meetings. Many of these news stories are written journalistically so that a broader public can understand them.

This approach is not consistent across all subjects or levels of meeting. For example news stories on what happened in the General Council are rare even though it’s the WTO’s top decision-making body apart from the biennial ministerial conferences. Instead, reports on the General Council usually contain only statements made by the director-general.

The spokesman does give on-the-record briefings on the General Council to the dwindling number of journalists who follow the WTO, but what little appears in the media around the world is often parochial, such as Nigerian interest in the new Nigerian director-general.

WTO news on services meetings — particularly the regular Services Council and its committees — is particularly sparse.

For other meetings, journalists are still briefed unofficially with more detail than appears on the website, but only ultra-specialist outlets publish anything at all. Almost nothing substantial appears in the Financial Times, Wall Street Journal, New York Times, or any other mainstream media, except on major legal disputes.

The inconsistencies sometimes come to the fore in news stories on the WTO website.

A recent story on an informal General Council meeting, “Director-General urges WTO members to deliver concrete results this year”, quotes at length the director-general and the General Council chair.

But their actual statements are restricted documents, not because anything they said was sensitive, but because of procedure — it was an “informal” meeting, there is no record, so the statements are restricted, perhaps because “that’s how we’ve always done it”.

Even that argument is untrue. There are no rules. Sometimes statements are published. Sometimes they aren’t.

We’ll look at informal meetings in more detail in part 3, on negotiations.

What about disputes?Back to top

WTO dispute settlement is an interesting area. It can be ultra-sensitive because the political stakes are high, implying the need to keep it confidential. But there are also powerful interests among business and various groups, such as environmental activists, who demand to know what is going on.

So, in many respects it is particularly transparent. The agenda of each Dispute Settlement Body meeting is published in advance. This section of the WTO website is well-constructed, with convenient and searchable access to all official documents, procedural steps and comprehensive coverage of each case — including the rulings, timelines and other detailed information. Some appeals hearings are open to the public, with advance registration.

On the other hand most hearings and deliberations are confidential. And then there is the perennial issue of members leaking rulings before they are published, which then-Director-General Renato Ruggiero tried and failed to discipline (see above).

But in one crucial respect the transparency is an illusion. In an age when national Supreme Courts can issue judgments that everyone can understand, WTO dispute rulings are written by specialist trade lawyers for specialist trade lawyers, a niche area even in the legal profession. Everyone else struggles to understand the main conclusions, let alone the detailed arguments. The “one-page summaries” are little better.

The Secretariat does make an effort to help privately and non-attributably. But heaven help the manager of a Scottish distillery facing punitive WTO-authorised tariffs, who tries to find out what was so wrong with financial support for Airbus aircraft that its single malt whisky exports to the US had to be punished.

Are we talking about ‘comms’?Back to top

Finally, transparency is not the same as “communications” although there is an overlap.

“Transparency should [be] seen as part of a wider communication strategy to convey the benefits of an open multilateral trading system,” the EU said in that 1998 General Council meeting, as paraphrased in the minutes.

Pure transparency provides straight information, warts and all. Advocacy emphasises the positive. Spin is more manipulative and not always honest — in the end it becomes suspect and undermines support.

Communications also includes promotion. This is often supply-driven (what the organisation wants to promote) with little regard for demand (whether the audience is interested). There is, however, a grey area between pure promotion and alerting people to information or tools that they genuinely find useful.

Over the years, the WTO has increasingly promoted the director-general and some deputies. To some extent this can be justified, but the danger is that too much promotion drowns out hard information.

It can place too much emphasis on individuals who head the Secretariat, at the expense of the real, member-driven work of the WTO. It may even render WTO communications less effective — more difficult to hear the signal above the noise — and less credible. “Oh. Another speech by the DG. Saying the same as before. Pass.”

In the 1980s and 90s a press release or a statement by the GATT or WTO director-general would be issued at most three or four times a year. When it arrived, people paid attention. Now it can be several times a day.

It is tempting to see the promotion of the WTO in marketing terms. On April 21, 2021 Director-General Ngozi Okonjo-Iweala used the words “repositioning” and “rebranding” to describe advice in an online discussion on the future of the WTO.

But trying to promote the benefits of the WTO is not new, and it never works. Promoting the WTO will be easier if the present negotiations and the discussions about reforms produce results; no amount of PR will be able to hide further failure.


NextBack to top

Part 3: Negotiations


Robert Wolfe is Professor Emeritus of Policy Studies, Queen’s University, Kingston, Ontario. He has written extensively on the WTO, transparency and reform, including “Romance of the three kingdoms now playing in Geneva : WTO reform as a drama between the U.S., China and the EU”, with Bernard Hoekman. Follow him @BobWolfeSPS

Peter Ungphakorn is a journalist and former information officer in the WTO Secretariat. Follow him @CoppetainPU

© The authors, except where credited differently


Updates:
May 29, 2021 — adding the link to the first publicly released fisheries subsidies text
May 27, 2021 — adding the link to the leaked agenda
May 6, 2021 — adding sidebar box on governments briefing economic actors

Picture credits: Main photo collage; A delegate reads the International Herald Tribune in the Centre William Rappard during the Public Forum, September 30, 2009; Participants in Room W of the Centre William Rappard during the Fourth Global Review of Aid for Trade, July 9, 2013 | WTO and Jay Louvion, from “Seeing by Listening” gallery

Author: Peter Ungphakorn

I used to work at the WTO Secretariat (1996–2015), and am now an occasional freelance journalist, focusing mainly on international trade rules, agreements and institutions. (Previously, analysis for AgraEurope.) Trade β Blog is for trialling ideas on trade and any other subject, hence “β”. You can respond by using the contact form on the blog or tweeting @CoppetainPU