Brief observations on the mechanisms for NGO participation in the WTOAbstract
The structures of the multilateral trade system, redefined during the Uruguay Round (1986-1994), have advanced demands for participation by non-state actors, among them non-governmental organizations. This article analyzes World Trade Organization regulations on direct participation by these actors and their evolution in recent years, with brief critical observations on the topic. (Original in Portuguese.)
World Trade Organization (WTO); Non-governmental organizations (NGOs); Participation
Resumo
As estruturas do sistema multilateral de comércio, redefinidas na Rodada do Uruguai (1986-1994), favoreceram demandas de participação por parte de atores de caráter não-estatal, entre os quais organizações não-governamentais. O artigo analisa a regulamentação da Organização Mundial do Comércio para a participação direta de tais atores e sua evolução nos últimos anos, com breves observações críticas sobre a temática.
Organização Mundial do Comércio (OMC); Organizações não-governamentais (ONGs); Participação
Resumen
Las estructuras del sistema multilateral de comercio, redefinidas en la Ronda de Uruguay (1986-1994), favorecieron las demandas de participación de actores de carácter no estatal, entre estos las organizaciones no gubernamentales. El artículo analiza las directrices de la Organización Mundial de Comercio sobre la participación directa de estos actores y su evolución en los últimos años, con breves observaciones críticas sobre la temática. (Original en portugués)
Organización Mundial del Comercio (OMC); Organizaciones no gubernamentales (ONG); Participación
Brief observations on the mechanisms for NGO participation in the WTO*
Michelle Ratton Sanchez
ABSTRACT
The structures of the multilateral trade system, redefined during the Uruguay Round (1986-1994), have advanced demands for participation by non-state actors, among them non-governmental organizations. This article analyzes World Trade Organization regulations on direct participation by these actors and their evolution in recent years, with brief critical observations on the topic. (Original in Portuguese.)
Keywords: World Trade Organization (WTO) - Non-governmental organizations (NGOs) - Participation.
Introduction: Why talk about participation of non-governmental organizations in the WTO?
The World Trade Organization (WTO), as an inter-governmental organization, recognizes the predominance of States in its deliberative process. Following this logic, employees of the State bureaucracy of its Members negotiate and make decisions within the scope of the WTO. For the international community, these employees are considered representatives of the government of each Member State. For the internal community of each State, these employees act, by and large, as auxiliary bodies of the Executive or Legislative Branch, exercising a popular indirect mandate grounded in either a prior mandate or an ex post control. This is a linear structure of representation, one in which there is a "national filter" in internal/international relations.1 It was and still is a highly valid structure for relations structured under the inter-state concept of international relations.
Nevertheless, recent changes have prompted the emergence of a new logic in international relations, extending beyond the inter-state order: a cosmopolitan logic.2 One of the most striking elements of this cosmopolitan logic is that while the State remains one of the key actors in the international system, it welcomes participation by other actors that bring with them other structures, forms of action ("non-state") and, consequently, other forms of regulation for the system.
Among the changes shaping this cosmopolitan logic are: (i) the emergence of new forms of social organization, in virtue of both increased cross-border interaction and the changing role of the State; (ii) a greater interdependence of States, which, in turn, requires a greater regulatory capacity by inter-governmental organizations; and (iii) the consolidation and expansion of certain principles in the game of politics, such as democracy, legitimacy, transparency, accountability and participation, on both national and international levels. These elements constitute a new reality and have prompted significant transformations in the coordination between governmental, non-governmental and inter-governmental organizations.
In the case of the WTO, some of the characteristics of its institutional structure and its modus operandi have caused this new logic to be incorporated into the multilateral trade system, among them: the nature of its agreements and its expansion into different areas governing social life; the dynamics and intensity of WTO work, with daily meetings to negotiate and monitor the process of implementing multilateral trade rules; the availability of a dispute settlement mechanism, with the combination of public and private interests; and the possibility for accession of new Members, under alternative rules.3 These characteristics also promote a more "judicialized" system,4 in which the culture of observing rules may always be invoked by Members and prevail in trade relations.
In this context, some important questions can today be raised about the relation of inter-state and cosmopolitan logics in the WTO, particularly concerning: (i) the exercise of representation by States in the inter-governmental forum; (ii) the extension of this representation (due to the reduction in the capacity to coordinate all relations on an international level by the "national filter") and (iii) the possibility of enlisting and/or intensifying the participation of non-state actors in the deliberative process of these kinds fora.5 I have already examined the first two points in previous articles6 and here I shall examine point (iii).
Given the disparity between the inter-state and cosmopolitan logics and the confluence of these logics in the structure of the multilateral trade system (which throughout its history has centralized decision making among few of its Members), it becomes important to question the channels of direct participation open to non-governmental organizations (NGOs)7 in the WTO. Furthermore, I shall also examine how these channels of participation have evolved over the years, since the creation of the WTO in 1994.
Before embarking on the intended examination, it should first be pointed out that, traditionally, the negotiation and application of multilateral trade system rules used to involve mainly only trade organizations (i.e., representatives of producers, dealers and distributors of goods). But once WTO agreements came into effect and its institutional structure was implemented, for the reasons cited above, this scenario changed and a growing interest has developed among other NGOs in the WTO's decision making process. Within this group, special attention should be paid to those that concern themselves with sustainable development, which are in contrast to the sterile rhetoric of trade liberalization. Included in this category are NGOs working in defense of human rights and the environment. Consequently, growth in not only the presence, but also the profile of NGOs in the WTO's decision making process has, in recent years, triggered important demands to evolve the mechanisms for direct participation by NGOs that have penetrated the legal and social structure of the Organization, as I will point out in the pages ahead.
Direct participation by NGOs in the WTO: Implementation and new demands
General provisions for participation
The provisions for direct participation by NGOs in the WTO are contained in the Marrakesh Agreement8 and other documents and decisions adopted in the workings of the organization either by Members or by the Secretariat. According to the provisions for participation and the demands presented for their improvement, influences on WTO governance can be seen in three levels: making rules, implementing rules and the process of interpreting rules, with a view to settling disputes.9 In this subitem, I shall present the cross-cutting provisions that influence all three levels, and, in the other subitems, those specific to each level.
One of the first provisions on direct participation by NGOs in the WTO is contained in Article V.2 of the Marrakesh Agreement. This article determines that the WTO General Council may make appropriate arrangements for consultation and cooperation with NGOs concerned with matters related to those of the WTO.
In general, the forms of participation in inter-governmental forums can be classified in four categories: (i) information, (ii) consultation, (iii) cooperation, and (iv) deliberation.10 In the Marrakesh Agreement establishing the WTO, forms (ii) and (iii) are expressly mentioned. Since the WTO is an inter-governmental forum, actual deliberation (i.e. the right to vote) is restricted to the governments of Member States. Concerning information, it should be noted that, for consultation and cooperation to be possible, the principle of transparency must be considered a fundamental principle of the organization.11
The degree of transparency can be evaluated by the exposure given the information, activities and decisions originating from the WTO, and also by the degree in which the organization uses the information and positions submitted by NGOs. The purpose of transparency is to guarantee a degree of predictability to both the proceedings and the results of the deliberative process - from the creation to the application and interpretation of rules.12 This principle is applicable not only to relations between Members (internal transparency), but also to public opinion in general (external transparency). The majority of the provisions of WTO agreements treat transparency as internal transparency;13 although, as long as exposure is given, external transparency is often achieved as a consequence.14
The first WTO document in which the guarantee of external transparency can be identified is Decision WT/L/160/Rev.1 (1996), relating to procedures for the circulation and derestriction of WTO documents. Under the terms of this decision, the question of timeliness for internal transparency is very different to that for external transparency. This is because, as a general rule, WTO documents, once discussed and negotiated among Members in the Councils and Committees, may only be released to the public after six months.15
Bowing to pressure from some quarters of public opinion, including NGOs, and as an important landmark following the collapse of the Seattle Ministerial Conference in 1999, the WTO began a process to review Decision WT/L/160/Rev.1. In 2002, Decision WT/L/452 was approved, reducing the inconsistency in the time it takes to derestrict documents and establishing a rule that WTO documents would be automatically made public.16 This rule applies to all documents submitted by Members and support material produced by the Secretariat. Exceptions to the rule of immediate publication apply to the minutes of Council and Committee meetings and to documents relating to renegotiation or modification of concessions or the accession of new Members. An exception may also be granted should one be requested by one of the Members or the Dispute Settlement Body.17
As an instrument for publishing WTO documents and information, the General Council approved the use of the WTO website, including a section of the site reserved for information specifically for NGOs (For NGOs).18 This instrument enables information to be accessed by the public in general, which, among other actors, includes NGOs.19
Besides this virtual format, the General Council also approved, at its WT/GC/W/29 meeting in 1998, that the Secretariat submit to NGOs the information and reports it regularly distributes to the media. When organizing briefings for NGOs, the General Council recommended that the Secretariat focus on topics of interest to this community.
However, criticism continues to be directed at the current system of information and there are still demands for change, particularly in virtue of its online concentration20 and its reproduction. Objections have been raised over the way information is reproduced, since only Members and the Secretariat have access to meetings and the responsibility for reproducing the information falls on the Secretariat. This casts doubts on the freedom and the impartiality of the Secretariat to (re)produce the information.
Generally speaking, consultation as a form of participation is provided for only in specific cases and it cannot be said that, like with information, it reaches the public in general. Consultation is provided for in Article V.2 of the Marrakesh Agreement, while guidelines were established by General Council Decision WT/L/162 (1996) and the topic was again addressed in meeting WT/GC/M/29 (1998)21 and Secretariat Paper WT/INF/30 (2001).22
Decision WT/L/162 states that the Secretariat should work more closely with NGOs to enhance the debate on topics related to WTO Agreements. However, the document does not define procedures. Therefore, given the loose wording of Decision WT/L/162, based on the terms "increased dialogue" and "be open", the Secretariat understands that it has a mandate to define the forms of interaction necessary to comply with the prescribed objectives.23 If, on the one hand, the positive aspect of this "mandate" is that the Secretariat is more sensitive to the demands of NGOs; on the other hand, the negative aspect is that the forms of interaction employed by the Secretariat may be subject to political pressure, even from one or more Members of the WTO.24
Some procedures for participation were defined and clarified in 2001, in Secretariat Paper WT/INF/30, and what occurs today in the WTO is that interactions with NGOs have taken on different formats, ranging from the promotion of longer events (such as courses and symposia) to debates with WTO representatives on a daily basis. But these mechanisms are organized, generally, on an ad hoc basis, following no pre-defined agenda and not necessarily being in any way related to negotiations between Members. The organizations involved claim that these forms of participation, rather than lending a contributive character to the negotiation and application of Agreements, are really just another series of specialized events, irrespective of being organized by the WTO Secretariat. This is why there is currently a demand to consolidate these forms of participation in the WTO structure, with well-defined, permanent mechanisms for participation and the least possible amount of interference from Members in the workings of these mechanisms.
Also under criticism is the fact that these events take place only in Geneva, which hampers WTO Secretariat contact with the plurality of NGOs, considering their thematic and regional diversity.25 Aware of this, some NGOs with the available resources have set up shop or transferred their offices to Geneva in search of this personal proximity with the Secretariat and Member delegations at the WTO.
In addition to this role played by the Secretariat, the General Council Decision recognizes that the coordinators of the work of WTO Councils and Committees may also participate in events promoted by NGOs, although this must always be done in a personal capacity.26 This has led NGOs to complain that this representation is not institutional.
NGOs may also, in the form of consultation and under the terms of WT/L/162 and WT/GC/M/29, submit position papers on topics being negotiated or on the agreements in force directly to the WTO Secretariat. In this case, the Secretariat receives the papers and, provided they comply with certain formalities,27 posts them on the for NGO section of the WTO website. The Secretariat also prepares a monthly list of all the material that is submitted for the information of all Members, in line with the terms of WT/GC/M/29.
Aware of what little influence these position papers have on the WTO and its Members, NGOs are now calling for these papers to be better organized on the website and, moreover, for the Secretariat to take a more active stance, proposing topics on which to present papers, with more pre-defined timescales and standards.28 The establishment of a procedure would also help NGOs monitor what happens to their papers and, as such, promote a greater correlation between the work produced by NGOs and the deliberative process coordinated by WTO Members. If this were the case, these mechanisms could progress from the category of information (from NGOs to the WTO and its Members) and be treated as a consultation.
Just as NGOs keep pressure on the WTO to obtain information, they also do so to claim their right to access WTO Council and Committee meetings. Moreover, they request the right to be heard at these meetings, or at least at some of them, and the opportunity to submit written documents. For these demands, proposals have been made to define a single and transparent procedure to enable participation by any and all organizations wishing to do so.29
Some proposals also recommend that criteria be presented to distinguish between NGOs engaged with trade issues and those that are not. Although NGOs looking to get involved in WTO activities must be 'concerned with matters related to those of the WTO' to qualify for participation, it is important to make a distinction between organizations that pursue commercial interests (representatives of producers, dealers and distributors of goods) and those that are non-commercial, not only because of the former's direct involvement in international trade, but also because these organizations (namely trade and services associations) are often able to devote more resources (human and financial) to exercising their participation and they also exclusively represent private interests.
Cooperation, by nature, conveys the idea of steady interaction between the WTO and NGOs and, theoretically, it can be applied both to the stage of joint discussion and analysis for making rules, and to the stage of joint action to implement international commitments. Although it, too, is provided for in Article V of the Marrakesh Agreement, even today there are no instruments in place making this cooperation viable.30
The only examples of cooperation mechanisms with NGOs in the WTO are the Advisory Bodies, which have been set up by WTO Directors. To date, three initiatives to create these Bodies have been submitted, two during the mandate of Director General Supachai Panitchpakdi (both in 2003) and one by Director General Mike Moore (in 2001). While an official WTO report was released on the creation and composition of the Informal Council established in 2001, for the two created in 2003 there is no official WTO information available for the public.31 For this reason, some NGOs, such as Oxfam International and Friends of the Earth, refused the invitation to take part in the Body; both organizations claiming they were not representative enough of civil society to participate in such a restricted group.32
With the exception of the Consultative Board created in 2003 that was formed by professionals considered experts in the multilateral trade system, the results of the work of these Advisory Bodies and their opinions have not been published by the WTO.33 Therefore, not only does this mechanism go unregulated, with no breakdown of the resources spent to contract the professionals and their responsibilities, but also there is no transparency in the conduct of their work, which makes it difficult for interested parties to participate in the selection process, and for NGOs themselves to participate in the different levels of direct participation in the WTO.
Processes of rule-making
In the WTO system, it could be said that the Ministerial Conferences, held every two years, are most closely associated with the rule-making process, as are the talks either leading up to or following these conferences to prepare the agenda or lend continuity to negotiations.
In the Ministerial Conferences, while there may have been no participation mechanisms available in the Uruguay Round, from Singapore onwards a need was noted to establish specific procedures for NGO participation.34 Besides the original requirement that NGOs develop activities related to those of the WTO, the list of NGOs selected in advance by the Secretariat must be approved by the General Council (a meeting in which all WTO Members have a seat). An important landmark was the 3rd Ministerial Conference in Seattle (1999), when WTO relations with NGOs started to become clearer and alterations in the forms of regulation started to be realized with more clarity.35
Since 1996, participation by NGO representatives has been permitted in the plenary sessions of Ministerial Conferences, while since the 4th Ministerial Conference (2001), it was emphasized that these organizations would not have the right to a voice in the session.36 Furthermore, since 1998, the General Council has allowed the WTO Secretariat to organize informative meetings (or briefings) for NGOs during the Conference on the progress of the negotiations.37
After 1999, additional measures were adopted in response to the intensified demands for participation. Since the 4th Ministerial Conference (2001), closer activities have been developed between the Secretariat and NGOs, notably during the preparatory stage in the run-up to the Ministerial Conference. Among these forms of activities are: (i) briefings, in Geneva, by the Secretariat after meetings between Members; (ii) small debate panels; (iii) the organization of working sessions; and (iv) the possibility of the Secretariat accepting written positions.38
These new measures prompted an increase in the activities surrounding the Ministerial Conferences, such as the Symposia organized by the WTO that are open to the general public. During the WTO's first five years, only two Symposia were held, while since 2001 there have been nine. The qualitative difference between those before and those after 2001 is not only in their size, but also in the relation between the discussion topics and the negotiations underway ahead of the Ministerial Conferences.39 Furthermore, since 2005, the Symposia have begun to be organized almost in partnership with other NGOs, which are responsible for organizing the panel and setting the theme.
In addition to the formal provisions for NGO participation in the WTO, we should not overlook the influence these organizations have had through other informal mechanisms. This is because these mechanisms can also have an impact on the rule-making process. Among them, we can cite the participation of NGOs in the official delegations of Members, either from their country of origin or from another (for attendance at the Ministerial Conferences and also at the preparatory meetings for the Conferences, in Councils and Committees) and in the promotion of parallel events to the Ministerial Conferences for discussion (and criticism) of the multilateral trade system.40
Based on this brief description, note that the measures for NGO participation in the rule-making process are restricted to the terms of Article V.2 of the Marrakesh Agreement. It is worth pointing out, however, that this regulatory provision defining procedure (for participation) was introduced effectively due to pressure from NGOs. Bear in mind, then, that the active character afforded the General Council by Article V.2 only came as a reaction to pressure from NGOs.
Considering that this has been the trend for implementing participation mechanisms, it can be concluded that while this reaction, on the one hand, points to institutional sensitivity, on the other hand it is also capable of causing new mechanisms to be implemented in a way that is not systematized in relation to the structure and the work developed in the WTO.
Processes of implementation of the rules
Within the institutional structure of the WTO, the main mechanisms for the application of rules are the periodic work of the Trade Policy Review Mechanism41 and the daily work of the WTO Councils and Committees. None of the bodies involved in the application of rules officially provide for NGO participation.
What actually happens is that some NGOs, particularly those with representation in Geneva, manage to get informal access to specific Council and Committee meetings.42 Another indirect form of NGO influence are the specific studies they prepare on the application of commitments assumed within the WTO and their high-exposure campaigns. Some of this knowledge is expressed in the position papers submitted to the WTO and posted on its website, and also through the participation of NGO representatives in specific WTO activities (such as seats in official meetings guaranteed NGOs during the Ministerial Conferences, for example).
It can also be said that the daily contact with the WTO Secretariat, the debates held by the organization (in Symposia and working groups) and the work of the Advisory Bodies are also mechanisms that promote the involvement of NGOs in the application of rules, even though this occurs indirectly.
Along these brief lines, the analysis of NGO influence on the application of WTO rules demonstrates how little formal influence there has been since the constitution of the WTO in this form of regulation. Instead, their influence is more informal, and there have been few demands for these influences to be formally recognized and made binding.
Three hypotheses may be raised to explain this situation: (i) lack of demand; (ii) less responsiveness of the WTO to this form of regulation; and/or (iii) a certain convenience on the part of the most influential NGOs with this informality. Based on results obtained in prior field research,43 all three hypotheses can be confirmed, so little future repercussion is expected in this form of participation; even though important mechanisms of ongoing participation by NGOs could be developed at this very level of regulation.
The dispute settlement mechanism
Within the three levels of regulation identified, the WTO Dispute Settlement Body (DSB) is the most "judicialized" of bodies in the organization. This is why it generates so many questions and analysis and draws so much attention from NGOs.44
There is no express provision allowing for the possibility of NGO participation in WTO dispute settlement procedure. But, since 1998, some NGOs have submitted, either to the panel or to the Appellate Body, position papers on the topic under analysis in the dispute (called amicus curiae briefs). Amicus curiae briefs, as applied in common law procedure, contain the views of any individual or body with a strong interest in the case, but not party to the dispute (views relating to a "public interest").45
The acceptance of amicus curiae briefs in the DSB is based on the right of the Panels to information, guaranteed in Article 13 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU).46 This article allows Panels to seek information and/or technical advice from: (i) any individual or body, provided it informs the authorities of the WTO Member in advance, and (ii) any relevant source, in accordance with procedures set forth in Appendix 4 of the DSU.
In 1998, two NGOs submitted the first amicus curiae briefs before a DSB Panel set up to analyze case WT/DS58 - Shrimp/Turtles. The Panel only recognized the material when the United States (party to the dispute) attached the positions to its submission and endorsed the positions of the amicus curiae briefs in its oral statement.47
Upon appeal of this decision, the Appellate Body accepted three more amicus curiae briefs and reviewed the Panel's interpretation of Article 13 of the DSU. According to the interpretation of the Appellate Body, there is a distinction between being "obliged" to accept a position and being "authorized" to accept a position.48 Therefore, a joint examination of both Articles 12 and 13 of the DSU and of Appendix 3 of the DSU, determined the possibility of accepting amicus curiae briefs submitted directly to the Panel or the Appellate Body.49 This conclusion by the Appellate Body went beyond the literal interpretation of the Panel and made it easier for the dispute settlement mechanism to accept information submitted by NGOs, even though unsolicited.
It is interesting to note that, even after this interpretation by the Appellate Body in the WT/DS58 - Shrimp/Turtles case, some years later, in an analysis of the same dispute, the Panel, concerning the application of measures to observe the recommendations and decisions of the DSB (Recourse to Article 21.5 of the DSU), resumed its initial interpretation of Article 13 of the DSU and only accepted amicus curiae briefs attached to the submissions of the parties.50 Subsequently, in the Appellate Body ruling on Recourse to Article 21.5 of the DSU, the Appellate Body once again accepted the submission of amicus curiae briefs. Procedure for the acceptance amicus curiae briefs in this case has swung back and forth, generating insecurity among NGOs over whether or not amicus curiae briefs will be accepted in the DSB.
Nevertheless, since it pioneered the analysis, from all the different angles of interpretation listed above, on the submission of unsolicited briefs by NGOs to the WTO dispute settlement mechanism, the WT/DS58 - Shrimp/Turtle dispute became a reference for later dispute decisions. In particular because the number of amicus curiae briefs submitted before the DSB has increased significantly over the years.51
Since then, the experience with amicus curiae briefs in the DSB has prompted the development of some specific procedures for their acceptance. Panels, for example, have adopted as a rule that they will accept positions submitted prior to the hearing with the parties. The Appellate Body even went so far as to define procedure in detail, on deadlines and methods, for the acceptance of amicus curiae briefs in its analysis of the WT/DS135 asbestos dispute.52
Amicus curiae briefs not only enable NGOs to play a part in the dispute settlement mechanism, they also allow for the introduction of new interpretations of WTO agreements.53 Concerning the amicus curiae briefs presented to date, it is possible to note a strong presence of NGOs that represent interests related to consumption, labor and the environment.
From the provisions of Article 13 of the DSU emerge practices and interpretations, at times influenced by NGOs that for some enhance and, for others, go beyond the provisions of the WTO Agreements. This has probably occurred due to the higher degree of "judicialization" of the WTO dispute settlement system, particularly when compared to the nature and evolution of direct NGO participation in the other levels (making and application of rules).
Another important point concerning direct NGO participation in the dispute settlement system is the demand for participation in the hearings. Recently, in September 2005, in the WT/DS320 Hormones and the WT/DS321 Hormones disputes, the Panel decided to publicly broadcast the audience with the parties to the dispute, in accordance with previously defined proceedings54. However, the initiative was not considered successful by the Secretariat, since for the 400 seats set aside for the public, the Secretariat received only 207 registrations and there were only 65 attendees.55
It should be stressed that, currently, in the process of reviewing the dispute settlement system, demands have been made both to reform Article 13 - either for the purpose of expressly permitting the submission of amicus curiae briefs and establishing specific procedure for doing so,56 or to prevent this practice57 - and to come up with proposals for holding public hearings. Demands for a regulation to enshrine participation mechanisms in the DSB have come mainly from the United States and the European Communities.58 This is, therefore, one of the levels of WTO regulation in which direct participation was on the negotiating agenda of Members. And, as such, it has more chance, at the current time, of being institutionalized and regulated.
Final remarks: Limitations of the WTO structure to the incorporation of new demands for participation
Note that, in the three levels of WTO regulation, the influence from the demands of NGOs fluctuates in accordance with the degree of interest of the actors involved, the identification of one or another of the mechanisms as more efficient by non-state actors (that exert the pressure), the institutional sensitivity of each of the forms of regulation and, finally, in accordance with the responsive capacity of the mechanism in the WTO.
Note also that the more "judicialized" the mechanism, the more responsive it is to the demands of NGOs. While this demonstrates a permeability of the WTO to the changes in the international environment, there are some limitations in its very system that could undermine the process or even cause discord within the organization. These limitations result either from the very institutional composition of the WTO (internal) or from its integration with the elements of the international system (systemic).
Concerning the internal limitation, the first thing to point out is the different degree of "judicialization" among the three levels of WTO regulation. While the dispute settlement structure is more responsive, the executive and legislative bodies (for making and application of rules) are more prone to the political influence of Members.59
Another point is that the provisions for participation and the procedure for participation have been defined basically by soft law, that is, provisions characterized by a lack of clarity in the definition of obligations and/or the precision of rules and/or the delegation of authority.60 Besides causing uncertainty over procedure for participation, this also sparks instability since there is no way of enforcing compliance with these forms of participation, should they not be implemented.
The concentration of the vast majority of mechanisms, particularly for the process of making and implementing rules, in one division of the Secretariat also undermines and limits the effective development of the mechanisms for NGO participation in the WTO. Recognition of this possibility for participation requires institutionalization in the WTO structure and a better structured body, with a larger number of people and a greater volume of resources to enshrine the provisions and procedures for NGO participation, as well as to promote technical reports and prospective analyses.61
Finally, while not wishing to belabor the point, a third critical aspect of the system is that recognition of NGO participation requires an increasingly more pro-active role by the WTO, including the responsibility to promote a balance in the representation and participation of NGOs, from different regions and sectors, in the WTO's different levels of regulation. The definition of participation mechanisms has a direct relationship with the most present NGOs and their demands.
The systemic limitations refer basically to the tension between the inter-state and cosmopolitan components within the WTO. The inter-state logic, previously guaranteed by a coherent and more stable system, is invoked by the majority of Members to restrict the possibility of NGO participation in the WTO. There are some misgivings over how NGOs may influence the deliberative process, i.e., how the cosmopolitan dynamic is organized and combined with the inter-state logic.62
Even though there is resistance from a good many Members, NGO participation in the WTO has occurred either through formal structures or the traditional informal channels. The current precarious regulation of participation has prompted contradictory reactions from Members in discourse and in practice, depending on convenience. In other words, when it comes to deliberation and expression of the inter-state concept of international relations, some Members oppose participation by NGOs, while in the day-to-day game of negotiations and dispute settlement, the same Members adopt a more cosmopolitan approach and accept the working partnership with NGOs in the WTO. This conduct undermines the transparency of the deliberative process (who effectively supports one or other decision) and also undermines the direct co-relation between the rights and duties of the different actors effectively involved in the process.
This is why, today, reflection on NGO participation needs to be broadened and involve more of the actors that want to increase their direct participation in the WTO, as well as those non-state actors that oppose the institutionalization of these mechanisms. It would also be interesting for the debate on whether to institutionalize the mechanisms of direct participation to be grounded on (i) a comparative analysis with other international organizations, and their successes and failures; (ii) concrete data on the participation of non-state actors in the WTO to date and their influence on the organization's decision making process; (iii) the principles applied in the institutionalization and in the workings of the mechanisms for direct participation in the WTO; and, primarily, (iv) a systemic perspective about what the implications of implementing these mechanisms will be for the integration of the inter-state and cosmopolitan logics, and the impact on the international system as a whole.
NOTES
Translation by Barney Whiteoak
MICHELLE RATTON SANCHEZ
Professor at the São Paulo Law School, Getulio Vargas Foundation (DireitoGV). Researcher for the Law and Democracy Group of the Brazilian Center for Analysis and Planning (CEBRAP). Holder of a Bachelor´s Degree and Doctorate from the University of São Paulo Law School.
References
- 2 A respeito, v. M. R. Sanchez, Demandas por um novo arcabouço sociojurídico na Organização Mundial do Comércio e, o caso do Brasil Tese apresentada à Faculdade de Direito da Universidade de São Paulo (Orientador: J.E.C.O. Faria), 2004.
- Para alguns trabalhos relacionados, v. J. Habermas, La constelación posnacional: ensayos políticos (tradução de Pere Fabra Abat, Daniel Gamper Sachse & Luis Pérez Diaz), Barcelona, Paidós, 2000;
- J. Habermas, L'intégration républicaine: essais de théorie politique (tradução de Rainer Rochlitz), Paris, Fayard, 1998;
- D. Archibugi & D. Held (org.), Cosmopolitan Democracy: an Agenda for a New World Order, Cambridge, Polity Press, 1995;
- Daniele Archibugi et al (org.), Re-imagining Political Community, Cambridge, Polity Press, 1998;
- J. Rosenau, Along the Domestic-Foreign Frontier: Exploring Governance in a Turbulent World, Cambridge, CUP, 1997;
- G. Teubner (org.), Global Law without a State, Hants, Ashgate Publishing Ltd./Dartmouth Publishing Co. Ltd., 1997;
- P. Kennedy, D. Messner & F. Nuscheler (org.), Global Trends & Global Governance, Sterling-VA, Pluto Press/Development and Peace Foundation, 2002.
- 3 A esse respeito, v. M. R. Sanchez, op. cit., 2004, pp. 57-90. Para indicação de alguns desses elementos e sua relação direta com a temática de direitos humanos, v. C. Dommen, "Comércio e direitos humanos: rumo à coerência", SUR Revista Internacional de Diretos Humanos, n. 3, 2005.
- 4 Na doutrina do comércio internacional consagrou-se o reconhecimento da transformação de um sistema eminentemente diplomático (GATT) para um sistema em que passou a preponderar o aspecto jurídico (OMC). Para acesso a trabalhos sobre esses conceitos, v. E.U. Petersmann, "The Dispute Settlement System of the World Trade Organization and the Evolution of the GATT Dispute Settlement System since 1948", Common Market Law Review, v. 31, n. 1, 1994, pp. 1157-244;
- A. Reich, "From Diplomacy to Law: the Juridicization of International Trade Relations", Northwestern School of Law Journal of International Law & Business, v. 17, 1996-1997, pp. 775-849;
- R. Shell, "Trade Legalism and International Relations Theory: an Analysis of the World Trade Organization", Duke Law Journal, v. 44, 1995, pp. 829-927;
- J. Weiler, "The Rule of Lawyers and the Ethos of Diplomats: Reflections on the Internal and External Legitimacy of WTO Dispute Settlement", Harvard Jean Monnet, n.09/00, 2000 <www.jeanmonnetprogram.org>
- ; J. Dunoff, Mission Impossible: Resolving the WTO's Trilemma, 2003 <www.law.berkeley.edu>
- 5 V. G. Marceau, "Is the WTO Open and Transparent?", in The Heinrich Böll Foundation (org.), On the Road to the WTO Ministerial Meeting in Seattle, Washington, Heinrich Böll Foundation, 1999, pp. 25-44: "O ponto mais importante nesta uniã
- 6 A respeito, v. M. R. Sanchez, op.cit., 2004; M. R. Sanchez, Mudanças nos paradigmas de participação direta de atores não-estatais na OMC e sua influência na formulação da política comercial pelo Estado e pela sociedade brasileiros (mimeo), 2006 <www.edesp.edu.br>
- 7 Nesse artigo, por uma adequação metodológica, será aplicado o termo formal "ONGs", tal como na OMC, para definir o conjunto de atores para os quais a organização prevê um tratamento específico. Em outros trabalhos, desafiei tal classificação, fundamentando-me na sua insuficiência para dimensionar a complexidade dos interesses representados nesses mecanismos. Isso porque, no caso da OMC, muitos dos atores presentes nos mecanismos resguardados para a participação de "ONGs" já não possuem um caráter exclusivamente "não-governamental"; por exemplo, apresentam-se nesses mecanismos hoje também associações de parlamentares, governos sub-nacionais, empresas e indivíduos. Para uma análise deste debate v. M. R. Sanchez, op. cit., 2004; M. R. Sanchez, "Atores não-estatais e sua relação com a Organização Mundial do Comércio", in Amaral Junior, A. (org.), Direito do Comércio Internacional, São Paulo, Editora Juarez de Oliveira, 2002, pp. 151-70.
- 9 A respeito da tríade de formas de regulamentação na OMC, v. F. Roessler, Are the Judicial Organs of the WTO Overburdened? (mimeo) (versão modificada de "The Institutional Balance Between the Judicial and Political Organs of the WTO" (s/d), in M. Bronckers, R. Quick (org.), New Directions in International Economic Law: Essays in Honor of John H. Jackson, Haia/Londres/Boston, Kluwer Law International, 2001, pp. 325-345).
- Para uma análise mais extensa sobre a influência de ONGs quanto à elaboração e aplicação de regras do sistema internacional, v. P. Kohona, "The Role of Non-state Entities in the Making and Implementation of International Norms", The Journal of World Investment, v. 2, n. 3, 2001, pp. 537-78.
- 10 Essa classificação origina-se daquela proposta pela OCDE para participação civil na definição da política em nível nacional, v. OECD- Organization for Economic Co-operation and Development, Emerging Citizens in Policy-Making: Information, Consultation and Public Participation, Public Management Policy Brief n. 10, Paris, jul., 2001.
- 11 Observa-se aqui que o princípio da transparência é apresentado como uma responsabilidade da organização internacional, no caso a OMC. Essa obrigação pode ser apresentada como complementar àquela prevista como um direito constitucional em grande parte dos paises democráticos, como é o caso do Brasil (v. Art. 5º, XXXIII, CF/88). Isso porque nas negociações internacionais são levadas em consideração as posições apresentadas por todos os Estados envolvidos, mas cada Estado, internamente, pode garantir o direito à informação das posições por ele apresentadas apenas (até porque em grande parte essas informações podem ser consideradas passíveis de sigilo; no caso do Brasil, v. Art. 23 da Lei 8.159/91 e Art. 5º do Decreto 4.553/02). Atenta-se ainda que o princípio da transparência nas organizações internacionais está relacionado ao debate sobre a aplicação de princípios democráticos nessas organizações, v. R. Howse, "The Legitimacy of the World Trade Organization", in J. Coicaud & V. Heiskanen (org.), The Legitimacy of International Organizations, Tóquio, United Nations University Press, 2001, pp. 355-407.
- 12 Sobre a questão da transparência ou prestação de contas na OMC, v. S. Panitchpakdi, "Balacing Competing Interests: the Future Role of the WTO", in G. Sampson (org.), The Role of the World Trade Organization in Global Governance, Tóquio, United Nations Press, 2001, pp. 29-35;
- P. Sutherland, J. Sewell & D. Weiner, "Challenges Facing the WTO and Policies to Address Global Governance", in G. Sampson, (org.), op.cit., 2001, pp. 81-111;
- S. Ostry, "External Transparency: the Policy Process at the National Level of the Two Level Game", material preparado para o WTO Advisory Group, 2002 <www.utoronto.ca/cis/ostry.html>
- Sobre o tema em relação a organizações internacionais, v. debate promovido pela ASIL, Proceedings of the 92th Annual Meeting: The Challenge of Non-state Actors, "The Accountability of International Organizations to Non-state Actors", ASIL, Washington, 1998, pp. 359-73.
- 14 V. S. Ostry, "WTO: Institutional Design for Better Governance", versão preliminar de artigo para seminário; Efficiency, Equity and Legitimacy: The Multilateral Trading System at the Millennium, Kennedy School, Harvard, Boston, 2-3 jun. 2000 <www.utoronto.ca/cis/ostry.html>
- 24 A respeito dessa vigilância, muito se questiona em que medida esse aspecto subestima a importância do Secretariado da OMC, em especial pelo argumento recorrente dos Membros de que a OMC é uma organização voltada para os Membros ou a serviço destes (considerados apenas os Estados, tal como representados em suas delegações diplomáticas). P. Willetts, "Civil Society Networks in Global Governance: Remedying the World Trade Organisation's Deviance from Global Norms", material apresentado no Colloquium on International Governance, Palácio das Nações, Genebra, 20 set. 2002 <www.staff.city.ac.uk>
- 26 V. indicado em WTO News, External Transparency, de 22 de novembro de 2002 <www.wto.org/english/news_e/news00_e/gcexternaltrans_nov00_e.htm>
- 30 A redação do Artigo V.2 teve por base o artigo 87 da Carta de Havana, para criação da Organização Internacional do Comércio (OIC). No entanto, as previsões genéricas da Carta de Havana foram analisadas por um Comitê Executivo que detalhou as formas de cooperação. Entre elas, podemos destacar a possibilidade de as ONGs estarem presentes nas reuniões dos Conselhos da OIC e terem o direito de manifestação nessas reuniões. Para descrições do histórico da previsão de interação entre as ONGs com a OIC e a OMC, v. S. Charnovitz & J. Wickham, "Non-governmental Organizations and the Original International Trade Regime", Journal of World Trade, v. 29, n. 5, 1995, pp. 111-22.
- 32 V. artigo "WTO Chief Sets Up Advisory Bodies With Business, NGOs to Boost Dialogue" <www.geocities.com/ericsquire/articles/wto/wr030617.htm>
- Em um dos grupos de trabalho para ONGs organizado pela Fundação Friedrich-Ebert-Stiftung durante a 5ª Conferência Ministerial, Making Voices Stronger! Global Civil Society and Democracy in International Institutions,
- 33 O relatório do Consultative Board está publicado em The Future of the WTO: Addressing Institutional Challenges in the New Millennium <www.wto.org/English/thewto_e/10anniv_e/future_wto_e.htm>
- Comentários relativos às propostas apresentadas no relatório podem ser encontrados em Bridges Weekly, v. 9, n. 2, 26 jan., 2005 <www.ictsd.org/weekly/05-01-26/story3.htm>
- 3434 A respeito, v. WT/L/161 (1996), Decision adopted by the General Council - Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 july; WT/L/162 (1996), supra.
- 3535 Em Seattle o número de ONGs inscritas para participar no espaço oficial da Conferência Ministerial praticamente quintuplicou em relação à participação na conferência anterior (em Genebra, 1998); para indicação das ONGs inscritas em cada uma das Conferências v. M. R. Sanchez, op. cit., 2004, Apêndice A.3(a); para as estatísticas atualizadas, v. M. R. Sanchez, op.cit., 2006. V. S. George, The Global Citizens Movement. A New Actor for a New Politics, 2001 <www.tni.org/issues/wto>
- : "Seattle é vista agora como um divisor de águas, primeiro porque a mídia finalmente aceitou que havia outra voz além dos governos e empresas. Os cidadãos podem realmente ter algo importante a dizer e dizê-lo de forma contundente [...] Do ponto de vista dos protestantes, em oposição ao da mídia, Seattle também pode ser vista retrospectivamente por ter marcado um momento decisivo Em outras palavras, não estamos mais na defensiva. Assim como essa mobilização não teve início com Seattle, também não terminará com algum outro evento único como o conflito policial em Genoa. Ela assumirá formas diferentes, em diferentes locais, mas é um fenômeno cada vez mais internacional, tomou vida própria e é agora uma presença orgânica permanente no cenário mundial. Apesar de ainda muito jovem, o movimento avança rapidamente em direção à maturidade e seus participantes estão ganhando conhecimento e confiança." [tradução livre] V. R. Keohane & J. Nye, The Club Model of Multilateral Cooperation and the WTO: Problems of Democratic Legitimacy, material apresentado no Center for Business and Government, Harvard University, 2000 <www.ksg.harvard.edu/cbg>
- , apontam que tal movimento das ONGs em Seattle foi o símbolo de abandono do modelo GATT: "A falha das reuniões de Seattle da OMC, em diversos níveis, indica os motivos para o enfraquecimento do antigo sistema de clube das políticas comerciais." [tradução livre] Para outras observações, v. Ostry, op. cit., 2000 e J. Dunoff, "International Law Weekend Proceedings: Civil Society at the WTO: the Illusion of Inclusion?" ILSA Journal of International & Comparative Law, v. 7, 2001, pp. 275-84.
- 36 V. WT/GC/M/13, Conselho Geral - Minutes of Meeting Held in the Centre William Rappard on 18 July 1996, 28 August 1996;
- WT/GC/M/27, Conselho Geral - Minutes of Meeting Held in the Centre William Rappard on 2, 14 April and 17 May 1998, 22 set. 1998;
- WT/GC/M/65, Conselho Geral - Minutes of Meeting Held in the Centre William Rappard on 8 and 9 May 2001, 18 jun. 2001;
- WT/GC/M/78, Conselho Geral - Minutes of Meeting Held in the Centre William Rappard on 10 February 2003, 8 mar. 2003.
- 44 A respeito dessa jurisdização em comparação com as demais instâncias de regulamentação da OMC e seus riscos, v. C. D. Ehlermann, "Six Years on the Bench of the 'World Trade Court': Some Personal experiences as member of the Appellate Body of the World Trade Organization", Journal of World Trade, v. 36, n.4, 2002, pp.605-39;
- 46 Para análises sobre o procedimento de amicus curiae no OSC, v. P. Mavroidis, "'Amicus curiae' Briefs before the WTO: much ado about nothing", Jean Monnet. Working Paper n. 2/01, 2001 <www.jeanmonnetprogram.org>
- ; J. Dunoff, "The Misguided Debate over NGO Participation at the WTO", Journal of International Economic Law, vol. 1, n. 3, 1998, pp. 433-56;
- P. Nichols, "Participation of Non-governmental Parties in the World Trade Organization: Extension of Standing in World Trade Organization Disputes to Non-governmental Parties", University of Pennsylvania Journal of International Economic Law, v. 17, 1996, pp. 295-329;
- D. Esty, "Linkages and Governance: NGOs at the World Trade Organization", University of Pennsylvania Journal of International Economic Law, v. 19, n. 3, 1998, pp. 709-30;
- D. Esty, "Non-governmental Organizations at the World Trade Organization: Cooperation, Competition, or Exclusion", Journal of International Economic Law, v. 1, 1998, pp. 123-48;
- R. Shell, "Trade Legalism and International Relations Theory: an Analysis of the World Trade Organization", Duke Law Journal, v. 44, 1995, pp. 829-927.
- 47 A respeito, v. WT/DS58/R, Órgão de Solução de Controvérsias - United States - Import Prohibition of Certain Shrimp and Shrimp Products - Relatório do Painel, 15 mai. 1998, parágrafos 3.129 e 7.8, em que o Painel conclui: "Aceitar informações não solicitadas de fontes não-governamentais seria, em nossa opinião, incompatível com as disposições do DSU conforme atualmente aplicadas. [...] Se alguma parte nessa disputa desejasse apresentar esse documentos, ou partes dele, como parte de suas próprias apresentações ao Painel, eles estavam livres para fazê-lo." [tradução livre] Comentários sobre a controvérsia e a interpretação podem ser encontrados em Mavroidis, op. cit., 2001; E. Hernández-López, "Recent Trends and Perspectives for Non-State Actor Participation in the World Trade Organization Disputes", Journal of World Trade, v. 35, n. 3, 2001, pp. 469-98, p. 485;
- M. Laidhold, "Private Party Access to the WTO: Do Recent Developments in International Trade Dispute Resolution Really Give Private Organizations a Voice in the WTO?", Transnational Lawyer, v. 12, n. 2, 1999, pp. 427-50, p. 440.
- 50 V. WT/DS58/RW, United States - Import Prohibition of Certain Shrimp and Shrimp Products - Recourse to Article 21.5 by Malaysia - Relatório do Painel, 15 jun. 2001, parágrafos 5.14 e 5.16.
- 54 V. WT/DS320/8, US - Continued Suspension of Obligations in the EC- Hormones Dispute, 2005,
- e WT/DS321/8, Canada- Continued Suspension of Obligations in the EC- Hormones Dispute, 2005. Para divulgação da audiência e procedimentos, v. <www.wto.org/english/tratop_e/dispu_e/public_hearing_e.htm>
- 59 V. S. Ostry, "Civil Society: Consultation in Negotiations and Implementation of Trade Liberalization and Integrated Agreements: an Overview of the Issue", material preparado para o seminário Good Practices And Social Inclusion: a Dialogue between Europe and Latin America and the Caribbean, Milão, 21-22 mar. 2003 <www.iadb.org>
- 60 V. K. Abbott & D. Snidal, "Hard and Soft Law in International Governance", International Organization, v. 54, n. 3, 2000, pp. 421-56, p. 422.
