7:31 AM Oct 31, 1996

CONSENSUS BY ABSENCE AT SMC PREPARATIONS

Geneva 31 Oct (Chakravarthi Raghavan) -- With just seven days for the self-appointed deadline of agreeing on reports and recommendations for the Singapore Ministerial Conference, various WTO bodies and sub-bodies are at work feverishly to complete their work.

There have been two parallel processes -- one within the framework of the WTO General Council and its bodies to prepare and complete reports and recommendations on the implementation of the WTO agreement, and an informal process under the WTO Director-General which is dealing with the new issues that one or the other country wants to put on the trade agenda, and a draft ministerial declaration.

The Director-General's HOD process is due to hold an unusual day-long Saturday meeting (on 2 November) to be able to complete the work, and report to the General Council which meets on 7 November.

The Committee on Trade and Environment (CTE), has been facing major North-South differences on a range of questions, and more particularly on the relationship of the WTO trade rules and multilateral environment agreements (whose adherents could range all the way from the entire WTO members to a few, regional or inter-regional members), the issue of eco-labelling, market access, and intellectual property rights issues.

At its meeting Wednesday, the CTE decided to name a number of drafting groups to tackle various parts of its chapter (chapter III) on recommendations, and is to meet next week to adopt the report. Meanwhile, the WTO secretariat is to produce a text, with square brackets, on the various formulations.

With so many different meetings, formal and informal, not only have delegations been stretched (with only the Quad countries able to field bodies to be present at every meeting), but even the space at the WTO headquarters building. While the meetings of the General Council and the three Councils under it (the Goods, Services and TRIPs Councils), take place with full attendance and don't meet simultaneously, meetings of subordinate bodies are quite different.

The large number of almost simultaneous meetings of various bodies preparing reports for the SMC has forced the meetings to be scheduled at another conference centre in Geneva, about a kilometre away, complicating the problems of the small delegations of developing countries who have to keep running, not only from one room to another inside the WTO, but from one building to another. Even some developing country delegations with several diplomatic personnel have been finding it hard to cope.

This has some practical, but adverse results, for the smaller developing nation delegations.

Under the WTO rules, all decisions are to be adopted by consensus.

This has been defined, in a footnote to Art. IX.1 of the agreement. This footnote says: "The body concerned shall be deemed to have decided by consensus on a matter submitted for its consideration, if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision."

And as was sharply brought out to the public in relation to the meeting of the Dispute Settlement Body on 29 October (to adopt an appellate body ruling against Japan in the alcoholic beverages taxation case), while WTO meetings legally need a quorum of simple majority of the members, so long as no one present objects, the meeting can proceed (as if there is a quorum) and take decisions by consensus.

In the case of the DSB, under the rules of the WTO, rulings have to be adopted unless there be a consensus not to adopt. So whether there is a quorum or not, whether a particular country objects or not, so long as there is no consensus against adoption, a ruling would be adopted.

Yet Japan raised the lack of quorum issue, and did not agree to the suggestion of the DSB chair that despite the quorum, the DSB could act by consensus, arguing that the level of attendance was "insufficient to adopt such an important report ... everyone should respect the rules of procedure."

But in the other bodies, where rules are being framed with some far-reaching implications, or the way is opened for new rules to be framed to further restrict developing countries, decisions can be taken without a quorum. Some participants say often there is no more than 20-30 members present.

If a country that has raised some questions or disagreed with a proposed formulation and has objected at informal meetings or negotiations, is not present at a formal meeting, the chair or any delegate can still put forward the formulation (to which objection has been raised) and have it adopted. Also, a formulation informally accepted by consensus, could be subject to an amendment and declared accepted in the absence of the members who originally negotiated and found the compromise.

Some of these have repercussions to the issues being considered in other bodies, as delegations have experienced this week in the controversial discussions and negotiations in the WTO's Committee on Trade and Environment (CTE) and the Committee on Technical Barriers to Trade (TBT).

They note that in the old GATT too, consensus decision-making prevailed. But the old GATT was a provisional treaty, and thus an agreement among governments whose implementation depended on good-faith acceptance by governments. As a result, the various delegations interacted with each other in a bona fide way, and did not try to take unfair advantage. Delegations would be advised by others in advance of intention to bring up something for decision, and the secretariat too adopted a neutral stance and privately advised the delegations.

This is no longer happening in practice. While the chairperson of some of the bodies try to function fairly, others stick to the letter of the rule and not the spirit.

And with the whole WTO processes non-transparent, there is no way for a capital to know how it is being forced to accept a particular view and put it into practice -- whether the consensus decision was taken when its delegate was present but did not speak up and object, or when the meeting was held its delegate was unable to be present or something else.

Some developing country delegations say that this whole issue of consensus decision-making at the WTO needs to be reviewed, and some safeguards built-in so that unfair advantage is not taken of their absence because of the inability of developing countries to have large delegations to staff so many meetings.

One safeguard, some suggest, could be that as in other organizations no more than two formal meetings take place at the same time. Also, each formal meeting of a committee to set out the delegations who were present, and for the chair and secretariat to automatically take note of lack of quorum to adjourn formal meetings.

Such a move, they say, would not inhibit informal meetings and efforts to reach compromises, but ensure that formal meetings take place only with quorum and ability of delegations to be present.