Voting in the WTO? It won’t happen

Why nothing has changed on voting in the WTO, and why it would destroy the WTO if it happened

Waste of time: Voting won’t happen in the WTO, at least for the forceable future | Edwin Andrade, Unsplash CC0

By Peter Ungphakorn
POSTED MAY 19, 2021 | UPDATED MARCH 25, 2022

Suddenly people are talking about voting in the World Trade Organization (WTO). Again.

Only a few months ago it was suggested as a way to break the deadlock in selecting the new director-general.

Thankfully that was settled when the new Biden administration flipped the US’s position and backed Ngozi Okonjo-Iweala.

After that, it was about the proposal to waive intellectual property obligations in the WTO related to the COVID-19 pandemic. Then it re-emerged over actions that might be taken in the WTO against Russia for invading Ukraine.

After the appointment of Okonjo-Iweala was settled, it was the US’s change of heart over the intellectual property waiver that encouraged new calls for a vote, although activists were talking about it almost as soon as the waiver was mooted. They looked at the rules, saw voting was an option, and concluded this was the best way to overcome resistance.

Back in November 2020, a group of academics and activists signed an open letter organised by the Global Development Policy Center’s Working Group on Trade and Access to Medicines. The letter included this:

We remind Member States that countries that prefer not to implement the waiver domestically will not be obliged to do so. We also remind Member States that a three-quarters vote will be sufficient for passage of the waiver request and that they should not allow the call for ‘consensus’ to permit upper-income Member States that have secured preferential and disproportionate access to promising diagnostics, therapeutics, and vaccines, to veto their collective right to safeguard their populations as well. Global solidarity and the imperative of truly equitable access require passage of the proposed waiver.

Some are still pushing for that. It’s a strange argument, based on the view that the majority are morally right. The minority opposition is less legitimate because it comes from “upper-income” countries with “disproportionate access”, who therefore should not be allowed a veto.

It’s an argument about the majority having morality on their side, used to justify a call for a vote. The argument fails if morality is with the minority.

But the reason why WTO members generally oppose voting is practical and more fundamental for the organisation than that.

The fact is, voting could destroy the WTO.

Commentators were wrong to predict the end of the WTO over the crisis in appeals in dispute settlement. It has survived and will continue to do so for a long time.

Voting is different. It’s not just about interpreting WTO agreements as applied in some specific concerns involving two or more countries.

It’s about WTO decision-making, potentially on everything, even though some seeking a vote say it should only be limited to a real emergency like the pandemic.

Consensus rule: voting could destroy the WTO | WTO
Consensus rule: voting could destroy the WTO | WTO
Rights and obligations

The biggest and most important decisions in the WTO discipline governments’ actions in trade. They are decisions on the outcome of negotiations, producing agreed rules.

All WTO members insist that these agreements must be reached by consensus, meaning the eventual deal has to crafted so that any remaining opponents drop their objections.

WTO members wrote into the rules the option of voting, but they have never used it, even for less important decisions — such as picking a director-general. The reason is fear of setting a precedent that would lead to voting on bigger issues.

The consensus rule is preferred because the WTO’s agreements constrain governments. Some people call it affecting sovereignty. They clarify governments’ rights in trade policy, but they also create obligations.

Countries are obliged not to discriminate between each other, except in defined circumstances. Their freedom to raise import duties is limited to the ceilings they accepted in WTO negotiations. They are only allowed to subsidise farmers within negotiated limits.

Where they have agreed to allow services providers to operate in their countries, they cannot normally close down that market. They have to give at least 20 years protection for patents. And so on, in hundreds of pages of agreements, and tens of thousands of pages of commitments.

Because of the consensus rule, each government was able to accept the WTO agreements, and the commitments each made on market access and subsidies.

Voting on those would have meant countries being forced to accept obligations against their will.

Back home: How would Congress react to a vote telling the US to tear up its Farm Bill? | public domain
Back home: How would Congress react to a vote telling the US to tear up its Farm Bill? | public domain

Imagine a vote telling the US it has to tear up its Farm Bill, or the EU to allow the rest of the world to make a cheese, call it feta, and sell it in Greece. Or Japan to fully open its rice market. Or India to stop subsidising agricultural inputs. What do we think would happen?

If the US lost a WTO vote on a new rule that could not pass Congress, it simply would not comply. Nor would the EU comply with a decision that was unacceptable to its member states and institutions.

Nor would China comply with a vote Beijing could not agree with. Nor would anyone else, from Afghanistan and Australia to the UK and Zimbabwe.

The WTO’s rules-based multilateral trading system would simply unravel.

But its members would never let it get to that stage. At least some of them would block any attempt to vote. There are many ways of doing this, including blocking the agenda of a meeting that was to hold the vote.

For the US, its own law seems to prevent the government from agreeing on a vote.

“Congressional direction on the issue of voting in the WTO was made clear in 1994 and it is very unlikely that anything has changed. It’s in §122(a) of the Uruguay Round Agreements Act (19 USC §3532),” tweeted legal expert Amy Porges (in a discussion on voting to expel Russia for invading Ukraine in 2022).

The intellectual property waiver might seem different. It creates no new obligations, but it would affect rights. Countries would have new rights to suspend some intellectual property protection if they want to. Other countries would see the rights of their inventors reduced where the waiver is applied. Voting on it could also set a precedent that might be difficult to restrain.

Whether or not we think the waiver is a good idea, it’s clear that many WTO members will object to a vote. The consensus rule forces countries to negotiate and come up with a deal that all members can accept. And a country in a majority one day could find itself in a minority on another.

History: not tradition but the reasons and whether they still exist | WTO
History counts: not about tradition but the reasons and whether they still exist | WTO
True in the past, true today

It’s useful to look back at the history of waivers and other types of decisions as an indication of what might happen. But not because the past determines the present.

(and it was a mistake)

Once, in the WTO’s first months (July 1995), the General Council voted to accept Ecuador as a new member. See the minutes (page 8), and this document (footnote).

This was quickly considered to be a mistaken reading of the rules since there was a consensus for that decision anyway.

There has never been voting in the WTO since then on any type of decision, on any subject. No other new member has been accepted by formal vote, always by consensus.

This is not about history, or tradition, or ritual, or “the GATT ‘old hands’ [with] patronizing tone [saying] unto me, ‘but verily it is to GATT/WTO as the Trinity to [Christianity],” as one academic put it recently.

It’s about exploring the reasons for the consensus rule in the past. And then asking whether the situation has changed. On voting, the answer is clearly no.

What was true in 2003 when the last waiver on intellectual property and health was agreed, is still true now, as far as decision-making is concerned.

And that’s why we won’t see a vote on the waiver or on any other issue, anytime soon. Talking about voting in the WTO is a waste of time even though the WTO Agreement allows it. It’s much more important to focus on the substance.

One final thought. Because of the difficulty in securing consensus agreement in some negotiations, WTO members have turned to talks among only part of the membership — known as “plurilaterals”.

Political scientist Robert Wolfe has pointed out that this is a kind of vote.

“Current plurilaterals are a form of voting since they would create obligations only for participants. [The] point is not relevant for [the intellectual property] waiver of course,” he tweeted. “[It’s] also voting by excluding members who don’t want to participate.”

All pieces tagged “WTO waiver” are listed here. More on WTO decision-making, consensus and voting

March 25, 2022 — adding Amy Porges’ tweets on US law and voting in the WTO; other edits to reflect more recent calls for voting because of the Ukraine conflict
January 8, 2022 — adding the box on the one occasion WTO members voted

Image credits:
● Raised hands voting | Edwin Andrade, Unsplash licence
● WTO meeting | WTO
● US House of Representatives chamber | public domain
● Fidel Castro addressing the WTO Ministerial Conference, May 1998, UN, Geneva | WTO


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

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