South Centre Analysis

The WTO Membership is faced with an unprecedented situation. The cover page of the Revised Draft Ministerial Declaration (JOB (01)/140/Rev.1) of 27 October, 2001, seems to imply that this draft, prepared by the Chairman of the General Council, in cooperation with the Director-General of the WTO, is being transmitted to the Fourth Session of the Ministerial Conference, without being agreed to by the Membership in any part at this stage. There is an obvious contradiction here as "General Council" is printed as the title on the cover page. This raises several extremely important questions, including:

1. Whether the name of the General Council can appear on any document that has not been prepared either by it or under its authority, or has been agreed to by it?
2. Whether the document, prepared by the Chairman and the DG, can be transmitted to the Ministers, without the approval of the General Council?

The answer to both the questions is no. This answer is supported by WTO law and practice.

Admittedly this is an unprecedented, and unfortunate, situation. The Marrakesh Agreement Establishing the World Trade Organization, and the Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council (WT/L/161 of 25 July 1996) had not anticipated such a situation. While there are no specific provisions in these two documents that address the current situation, they do provide guidance as to the required course of action. Rule 33 of the Rules of Procedure for Meetings of the General Council states that "The General Council shall take decisions in accordance with the decision-making provisions of the WTO Agreement, in particular Article IX thereof entitled "Decision-Making"." Article IX.1 of the WTO Agreement, in turn, states that "The WTO shall continue the practice of decision-making by consensus followed under GATT 1947. Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting." The only course open to the General Council to transmit recommendations and drafts to the Ministerial Conference, therefore, is through a decision based on consensus or voting. This covers situations when there are disagreements among Members on the recommendations to be submitted because in such situations the General Council, BY CONSENSUS, can transmit these disagreements (including through alternative formulations) to the Ministerial Conference.

Rules 17, 18, 21, 22, and 24 of the Rules of Procedure for Meetings of the General Council elaborate the functions of the Chairperson. These are limited to various aspects of conducting the proceedings in the General Council meetings. Similarly, according to Rule 2 of the same Rules of Procedure, the only function of the Director-General is to convene the meetings of the General Council by issueing a notice. The Chairperson or the DG cannot perform any other function unless authorised by the General Council, again deciding by consensus or voting. The WTO law does not assign any special roles to the Chairperson or the DG, including transmission of recommendations to the Ministerial Conference, unless authorised by the General Council.

The above interpretation is supported by the GATT/WTO practice. For example, at the time of Punta Del Este, separate documents by the Group of 47 and the Group of 10 were presented to the Ministers. Similarly, the draft Declarations submitted to the Ministers at the First (Singapore, 1996) and the Third (Seattle, 1999) Sessions of the WTO Ministerial Conference included agreements as well as disagreements among Members on various issues. These drafts clearly reflected the diversity of views among Members and disapproval of some for certain parts. There is no precedent where the Chairperson or the DG had communicated to the Ministers, in the absence of a consensus in the General Council, only one set of views or recommendations.

The preparatory process for the Seattle Ministerial Conference, in particular, has confirmed this practice. For example, in the Preparatory Special General Council meeting held on 23 November, 1999, the delegation of Hong Kong, China made a request which has been recored as follows in paragraph 11 of document WT/GC/M/51:

"The representative of Hong Kong, China said that the positions of delegations which had made proposals before October 19 and which were not reflected in the text circulated on that date should not be prejudiced in any way by the transmission of that text to the Ministerial Conference."

The role of defending the rule-based nature of the WTO is again to be performed by developing and least-developed countries. The intension of transmitting a one-sided text to the Ministers is without any basis in GATT/WTO law and practice. This will have even more far reaching consequences for the credibility of the multilateral trading system than the debacle at Seattle. Developing and least-developed countries have the responsibility to speak clearly, forcefully and resolutely to ensure that this does not happen.