“Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman”
― Louis D Brandeis, Other People’s Money and How the Bankers Use It, 1914
In part 2, we said we believe external transparency should be the default in the World Trade Organization (WTO). But we also recognise that some confidentiality is needed at least for a limited time.
This is particularly the case in some stages of negotiations, but with limits. Here’s why.
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How are WTO negotiations organised? | How has the system evolved? | How are they handled? | Is this still done in 2021? | What has happened to Green Room meetings? | Have they really never negotiated in big meetings? | What about talks outside the WTO? | Next
To kick-off, a bald fact. Like it or not.
Countries do not negotiate in meetings of the full membership, even behind closed doors.
That’s even true of informal meetings where there is no record.
For delegates, any meeting of the whole membership is almost public. They use these occasions to speak to the gallery — to the 163 other members and to their bosses and colleagues in ministries back home. They simply reiterate their positions and their red lines. There is no give-and-take, no movement towards compromise and consensus, nothing that we could call “negotiation”.
That means the chances of a negotiation taking place in front of a real public audience are zero.
Some commentators argue that this is undemocratic and that the world must learn to negotiate in public. It’s simply not going to happen.
And if it did, meetings would consist only of grandstanding.
The most vivid example is the plenary sessions at ministerial conferences. After the stars of the show have made their statements on the opening day — the host dignitary, director-general, guest speaker, ministers from the US, EU, and China — the plenaries retreat to a much smaller room for speeches by the rest of the ministers.
Often the only delegates present are from the minister’s own team. The conference TV camera zooms in on the minister, leaving the empty seats invisible. Ministers may think they are making important statements for the record. No one else cares one jot, except perhaps the audience back home.
So if they are required to really negotiate in public, then ministers, ambassadors and their officials would either freeze or go outside the WTO structure in the search for compromise, as they often do already.
They’d meet at the water cooler, coffee bar, breakfast, lunch, dinner, golf course or ski slopes. Or they’d talk directly between capitals. The WTO lexicon already has “fireside chats” and “walks in the woods”.
In late 1992, the US and EU struck a deal on agriculture at Blair House in Washington, a crucial breakthrough allowing the 1986–94 Uruguay Round to conclude and the WTO to be set up.
Other countries do not like being excluded, but when the principal antagonists can’t sort out their differences, nothing happens.
WTO negotiations have evolved to deal with the problem and to allow at least some real negotiation to take place within a structure led by the chair — usually an ambassador from one of the members, or the director-general in the overarching Trade Negotiations Committee.
The structure is sometimes described as “concentric circles” representing meetings of various sizes. This means some WTO sessions can be sufficiently small, comfortable and private to allow real give-and-take, without negotiators being put under pressure at every tentative step away from their starting positions. Small meetings can also deal with issues that only concern a few countries. This is often the only way that negotiators can float ideas that either develop further or end up in the bin.
The director-general’s consultations with up to about 20 ambassadors, and periodically ministers, are called “Green Room” meetings after the informal name of the meeting room in the director-general’s office suite. Other small meetings are also named after their location, in Room D, E, or F or elsewhere at the WTO.
GROUP OF 4 TACKLE TRIPS WAIVER
In late 2021, WTO Director-General Ngozi Okonjo-Iweala tried a new tack to break a year-old deadlock that was unresolved in meetings of the full membership. This was about a proposal to waive intellectual property obligations (the “TRIPS waiver”) for the COVID-19 pandemic.
She brought together ministers and senior officials from four key members — India, the EU, South Africa and the US — to talk quietly behind the scenes. She assigned one of her deputies, Anabel González, to coordinate the discussions.
It had already been discussed in the December 16, 2021 intellectual property (“TRIPS”) council meeting and various subsequent meetings of the General and TRIPS councils, when the four briefly reported on their consultations without offering any details.
The failure to provide details led to complaints from a range of members in various meetings. They included the African Group, Indonesia, Japan, Russia, Switzerland and the UK. WTO members finally received a text in May 2022 and began working on it.
The complaint was not about the small-group consultation. Members generally hoped it would help break the deadlock. Rather, the complaint was about lack of information on what was being discussed.
Several warned that they could not accept an outcome that they would be forced to agree to without enough time to digest what was proposed and to negotiate it further.
“TRIPS” = trade-related aspects of intellectual property rights
Informal, off-the-record meetings open to the whole membership have another, more technical function as well. More recently the agriculture negotiations have seen sessions on specific subjects, each chaired by one or more “facilitators”, who are ambassadors or agricultural attachés.
These sessions are usually to allow delegates to examine the technical aspects of each other’s papers or proposals. They help move negotiations forward. They are internally transparent since all members can attend, but not much information is made public.
They are similar to “thematic” sessions in the regular committee meetings (ie, not negotiations), which also provide informal learning, but sometimes with outside experts participating.
This configuration of meetings of different sizes has implications for both internal transparency — a major concern for delegations — and external public information.
The main point is this. The smaller meetings themselves are confidential. The purpose is so that ideas are floated and refined if they are useful or dropped if they unworkable. They are futile if members just repeat their positions.
It doesn’t always work. It doesn’t stop “the pointless rambling from the inconsequential ramblers,” as one official put it.
Or, “I know you have a statement from capital that you have to read out,” one chairperson wearily interrupted a fellow-ambassador in one of these meetings, “but everyone here already knows what your position is.” Or words to that effect.
No doubt many ambassadors would prefer their colleagues and bosses in capital to allow them more room to negotiate properly.
But when it does work, the results emerge in revised proposals and draft texts, either from the group, or from the chair’s own assessment of what might be accepted.
Without that initial confidentiality there would be no outcomes. It’s no accident that when chairs feel they need to talk to delegations individually, to explore possible compromises, the meetings are called “confessionals”.
In the current negotiations, small group meetings tend to be used less. But several of the talks are “plurilateral” anyway, involving only part of the membership.
The system requires skilful, delicate handling to keep the membership onside. Delegations repeat ad nauseum that the whole process must be “transparent, inclusive, and bottom-up”. They often add, “with no surprises and no faits accomplis”. It’s a tough ask.
The problem with small group meetings is most vividly seen at WTO ministerial conferences.
In Nairobi in 2015, perhaps 100 ministers and 3,000 delegates waited for hours while the most difficult issue was thrashed out by a group of only five members — Brazil, China, the EU, India and the US, and in the presence of the conference’s Kenyan chair and the WTO director-general.
(That in itself reflects the changing power structure in the system. Long gone are the days when the old “Quad” of Canada, the EU, Japan and the US were dominant.)
Privately some ministers now say they may skip ministerial conferences because for them it’s a waste of time, even though whatever was agreed in the small group still had to be endorsed by consensus by the whole membership.
In Geneva, where there is more time, the answer is to keep information flowing back and forth internally, and to ensure smaller meetings represent the whole membership by including coordinators of various coalitions. Those coordinators are supposed to brief the countries they represent, as well as to negotiate from their groups’ positions.
In the agriculture negotiations, particularly in the most active period of 2006–2008, the chair — New Zealand ambassador Crawford Falconer — ensured the talks were as inclusive and “bottom-up” as possible by routinely reporting back to the full membership. Like the chairs in some other subjects, he described in detail where some of the blockages were.
Falconer spent two years meticulously building up towards a draft agreement by floating questions, “reference papers”, “challenge papers” and working documents, and by listening to the responses, mainly in small group meetings. All of those documents were released publicly as well, sometimes with a press conference.
That draft text from 2008 was the closest the agriculture negotiations got to a final agreement. Director-General Pascal Lamy said only two out of 20 key issues were left to be resolved. Some countries argue that the exercise failed because the text was just too complicated. But it remains on the table and many delegations draw on it as they continue to negotiate.
Recently this structure has been used less, but there have also been fewer breakthroughs in negotiations. And now in 2021 they are back, but with some awkward constraints.
On April 12, 2021, Director-General Ngozi Okonjo-Iweala told fisheries subsidies negotiators to “expect more meetings, and in different configurations,” in order to try to conclude the fisheries subsidies talks by July.
The accompanying news story was more specific: “Small group meetings will be held on the issues of subsistence/artisanal/small-scale fishing; due process requirements for determinations of illegal, unreported, and unregulated (IUU) fishing; and the approach for identifying and prohibiting subsidies contributing to overcapacity and overfishing.”
So far, this has been a rougher task than in the period up to July 2008. The present negotiations chairs are forced to avoid convening small groups because of objections from many members. This has proved to be a nightmare.
When news leaked to the rest of the membership that the chair met a handful of key delegations, the practice had to stop.
Some small group sessions are kept “open-ended”, which in WTO jargon means open to anyone interested. One expert described “open-ended small group” meetings as an oxymoron.
In the fisheries subsidies talks one solution has been to hold three parallel meetings on a topic each with the same agenda but with different sets of about 20 delegations representing the membership.
That triples the time spent on each topic in the negotiation — nine hours per topic if each meeting lasts three hours, 27 hours when three topics are discussed. Internal transparency is maintained by allowing other delegations to listen in but not to speak. Pity the poor third secretaries at the diplomatic missions, for they are the ones likely to be assigned to listen in.
This arrangement is cumbersome but the chair, Colombia’s Ambassador Santiago Wills, says he has detected some movement from the meetings. Avoiding long lists of delegates queuing up to speak helps.
But it means that the chairs also have to rely on “confessionals” — meeting individual delegations one by one — which is time-consuming and is totally untransparent, even internally. But it is unavoidable if the chair is to produce a draft with any chance of success.
Negotiations on electronic commerce are already among only part of the WTO’s membership. These talks too, have included sessions in smaller groups.
But because small group meetings are supposed to include representatives of all coalitions and to cover the whole membership, part of the problem is the failure of the coordinators themselves to be internally transparent and inclusive within their own coalitions. To put it bluntly, they are not always trusted.
The Green Room as a formal practice among ministers essentially died in July 2008. It has been problematic for more than 20 years.
It originally reflected three negotiating realities:
- Informality is vital
- the largest or most influential members must always be in the room
- other interested countries should be engaged in the search for consensus — “inclusiveness”
Smaller countries and their NGO supporters complained endlessly early in the Doha Round (from 2001) about the Green Room process and demanded “internal transparency”. The sentiment is still echoed from time to time, but India and South Africa did not mentioned it when they complained about “plurilateral” negotiations among subsets of the membership. That may not be a good sign.
Part of the problem in 2008 was the cramped, uncomfortable room. But the 30 or more ministers each with one adviser were already too many to encourage real engagement. They ended up listening to speeches repeating familiar positions.
At ministerial conferences after that, ministers still found ways to search for consensus in smaller groups, but not in anything like a green room.
More seriously, the practice also vanished from meetings of officials in Geneva (until Director-General Ngozi Okonjo-Iweala revived them in May 2022 as members prepared for the 12th Ministerial Conference, rescheduled for June 12–15).
In a remarkably defensive speech to the General Council in July 2017 (page 111), the director-general at the time Roberto Azevedo said he scrapped Green Room meetings of ambassadors in 2014.
Instead of holding Green Room sessions before every General Council meeting, he called full meetings of all heads of delegations where everybody was invited and “could speak their minds about anything. It was not a negotiating forum. It was just an informal process where Members could talk to each other,” Azevêdo said.
It seems Azevêdo saw no role for the director-general in brokering consensus in negotiations or helping them move forward. He simply gave up searching for configurations allowing the principal antagonists to find common ground on an issue. It ended complaints about lack of internal transparency but it was extreme.
His successor, Okonjo-Iweala, has been much more active as a broker on issues such as the intellectual property waiver, the WTO’s response to the pandemic more generally, and preparations for the Ministerial Conference.
One important point remains. Decisions are not made in formal meetings. They are set up in informal meetings — whether Green Room or informal heads of delegations sessions — and then confirmed formally.
There has been one exception. In 2013, Direct-General Roberto Azevêdo chaired sessions of the full membership to negotiate a draft on trade facilitation, which was then agreed at the Bali Ministerial Conference at the end of the year.
But by then, the range of proposals had already been merged into a single “consolidated” text. This was projected on to screens and edited line by line in the meetings.
The claim at the time was that this would end all small-group negotiations. It didn’t, even if they have been used less since then.
Smaller negotiations are not immune to problems, even on internal transparency.
In the negotiations on a Trans-Pacific Partnership (TPP, now CPTPP but without the US), the Americans insisted on some linked bilateral negotiations in a configuration dubbed “hub-and-spoke”.
There was little communication between the spokes or back to the hub. Participants struggled to know what was happening overall. It was difficult for them to judge how to balance trade-offs where giving concessions in one area depended on receiving concessions in another.
Worse, in what was supposed to be the final TPP round in July 2015, Canada and Mexico were shocked to discover what the US had conceded to Japan on automobiles. Japan later bizarrely claimed that it understood the Americans had spoken on behalf of their North American (NAFTA) partners.
Public information on negotiations such as TPP/CPTPP or the Canada-EU agreement (CETA) is considerably less than with the WTO. These agreements do not have neutral secretariats. One exception is the east Asian Regional Comprehensive Economic Partnership (RCEP), which uses the small secretariat of the Association of Southeast Asian Nations (ASEAN).
Otherwise information is only made public through the participating governments. They have narrow agendas and are cautious about public scrutiny. Technical summaries can be opaque, and during the talks sometimes the public only see chapter headings, not the content.
In its negotiations with the US, the European Union published its own proposals, often as draft texts. But the US was more circumspect. Reports on the rounds of negotiations revealed little more than the chapters discussed. On the other hand, the main elements of US negotiation mandates were public, since they were enshrined in the 2015 Trade Promotion Authority legislation.
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
June 6, 2022 — in the sidebar box on the intellectual property waiver, adding a link to the May 2022 talks
May 24, 2022 — adding the revival of ambassador-level Green Room meetings to prepare for the Ministerial Conference
March 10, 2022 — adding the sidebar box on the group of four and the TRIPS waiver
• Sunlight reflecting off the glass panes of the Council Room onto the Centre William Rappard during the 2019 WTO Open Day, 6 June 2019; Atrium viewed from an upper floor, Centre William Rappard during the 2017 Public Forum, September 27, 2017 | WTO and Jay Louvion, from his “Seeing by Listening” gallery
• Santiago Wills | WTO