Monday, June 18, 2012

Is the WTO Transparent?

Transparency in functioning of democratic institutions has often been the subject of intense discussion and debate. Transparent decision making enhances accountability and ensure that public policy decisions are not arbitrary and capricious. It is considered as a hallmark of a well functioning democracy.Is the principle of transparency equally applicable to international institutions? Are international institutions as transparent as national institutions?

The WTO as an international institution has often been accused of being non-transparent in its dealings. Be it the negotiations during the earlier years, functioning of the Secretariat or the conduct of the dispute settlement proceedings, critics often emphasis that decisions of the body are taken without taking into account the interests of public transparency. This often leads to public criticism and a suspicion that decisions are taken under a cloud of secrecy against larger public interest. While various WTO Agreements require that countries should follow transparency in terms of notification of their measures in accordance with WTO rules, the functioning of the WTO itself in terms of a transparency record is a subject matter of debate. The questions therefore is: Is the WTO transparent in its functioning?

Gabrielle Marceau and Mikella Hurley have comprehensively addressed this issue in "Transparency and Public Participation in the WTO: A Report Card on WTO Transparency Mechanisms" in the Trade, Law and Development Journal. The article analyses three broad themes: Transparency in the context of information available to the public, the status of amicus curiae (friend of the Court) briefs in the dispute settlement proceedings as well as public participation in the WTO of non-State actors. The articles lauds the efforts of the WTO in terms of the innovation it has made in bringing about transparency in dissemination of information through the WTO website. Further, the increasing trend of acceptance of amicus curiae briefs is seen as a sign of opening up of the functioning of the WTO. Increasing participation of NGOs in various fora of the WTO is also cited as proof of the willingness of the WTO to engage with the outer world and not act as a closed door entity.

Preparing a "report card" of WTO's efforts to enhance transparency, they have suggested specific measures to enhance the "transparency" of the WTO, especially in the area of dispute resolution:
"In the area of dispute settlement, some have pressed for the following: 

1. WTO Members should take the initiative to make their submissions available 

to the public, sanitizing any confidential or proprietary information. The United States is already taking this initiative as a matter of policy. Increased Member willingness to do so is thus encouraged so as to help prospective amici provide more useful information to panels and the Appellate body. Such initiative would also do a great deal to dispel the remaining public concerns about the WTO dispute settlement process.  

2. There is a need to negotiate clear rules regarding the acceptance of amicus curiae briefs. Members have not done so, despite repeated calls for such guidelines, leaving prospective amici and litigants alike in a state of continuing uncertainty.
3. Panels and the Appellate Body should take a predictable and uniform approach in the treatment and discussion of amicus briefs, both in terms of why they are accepted for consideration (or not), and how they are used. In order to ensure maximum transparency, reports should address the main arguments put forward in  amicus briefs, which will allow Members and the public to understand how they may influence the outcome of a case.    

4. All open hearings should now be made available to the public by webcast. This technology is now established, and  is already in use in other fora.  In addition to furthering the WTO's reputation as a transparent organization, this practice would also ensure that developing country interests are not left out. 

 For the working committees of the WTO: 

5. WTO Members should consider additional, systematic avenues for the participation of and consultation with NGOs. If the membership is not prepared to open committee and working group meetings to NGO participation at this time, the WTO should make certain that the agendas of other meetings – particularly the Public Forum – reflect the important issues under consideration in Member-only discussions."  
Some observations:

1. The WTO website is exceptionally well organised and "transparent". I had blogged about it here a few months back. The ease with which one can find information based on one's need itself signifies that a lot of thought and energy has gone into the design and construct of the website. Agreements, interpretations, updated proceedings as well as status of dispute settlement proceedings all find their place. It definitely promoted transparency. It definitely outshone several other Government and International organisation websites. The design, layout, ease of access and most importantly content and "uptodate" nature of subjects uploaded is very impressive. The Agreements, Dispute settlement cases as well as plethora of documents make very interesting reading. The use of this tool of public transparency will go a long way in enhancing WTO's record of transparency. It is one of the most well organised website for a public institution, especially an international organisation. However, Steve Charnovitz in the IELP blog was rather critical of WTO's transparency in putting accession protocol details on the website.

2. The WTO can be transparent largely to the extent its members want it to be. The WTO, as is often referred to, is a member driven organisation. Though the Secretariat does exist as an independent entity and does play a critical role, decisions at the WTO are largely that of the members. The need and contours of transparency must be thus defined by the members after due deliberation. Is increased transparency detrimental to developing country interests or interests of weaker countries? Why does the notion prevail that enhanced transparency can jeopardise developing country interests? Is transparency in the interests of only powerful trading partners? Can transparency be used as a tool against the less equipped world? This notion has to effectively combated. Transparency in decision making, whether national or international, should be valued as a universal value which enhances the public interest. 

3. Is transparency necessarily increased participation of non State actors? While increased participation of various interests like NGOs, citizen groups enhance the diversity  of the WTO and democratises the working of international institutions, several countries feel that it is an encroachment of its sovereign right to represent its people. they accuse "civil society" of representing elite interests within their countries as well as at times representing other countries interests. How representational are non State actors? How transparent are they in their functioning? While this may be an alarmist and inward looking view, the fear that non State actors can be non-representational, elitist and the concealed flagbearers of vested interests needs to be adequately addressed.

4. Lastly, on the dispute resolution mechanism. The DSM is the jewel crown of the WTO system. The idea of increased public access to proceedings is a welcome step. Public broadcast of proceedings can open the doors to public interest in the WTO. Today, WTO and dispute settlement at the WTO is absent in the national discourse except when a country's interests are adversely affected. WTO is commonly seen as an institution that invades national sovereignty and domestic policy space. This is largely due to the perceived "opaqueness" of the international institution's functioning as well as the "closed door" aura of the dispute settlement mechanism. Can opening proceedings to the public change this perception? Will it bring about a positive change in public perception? Can it lead to increased interest in the functioning of the dispute settlement mechanism as a "rule based system" having its  grounding in transparent rules and procedures rather than being a power based decision making body? In most national judicial proceedings, Court proceedings are open to the public except when in-camera proceedings are specifically ordered. Can this be made the rule at the WTO? This would not only increase transparency but also make the country accountable to its domestic constituents of the positions it takes in international disputes. Is it too radical for implementation?

The debate of transparency at the WTO needs to be one of the foremost agendas at the negotiating forum. While many steps can be undertaken by the Appellate Body itself many measures will require concrete, bold steps from member countries. Achievable or highly unlikely in the context of the Doha impasse?

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