Gustavo Capdevila
IPS news reportsNovember 24, 2000
The member nations of the World Trade Organisation (WTO), with the exception of the United States, ruled that the institution's Appellate Body overstepped its mandate by inviting non-governmental organisations (NGOs) to participate in legal proceedings.
The decision, adopted by the WTO General Council this week, reopened the debate on civil society's contributions to the discussions that take place within the multilateral trade system, and revealed the internal differences afflicting the Geneva-based institution.
Within the WTO, which has won fame in recent years for building one of the most dominant international power centres, there had existed a delicate balance between the General Council and the Appellate Body.
The Council operates with maximum political jurisdiction when the WTO ministerial council is not in session, while the Appellate Body (AB) is highest in the hierarchy of the organisation's dispute settlement system, the only legal mechanism of its kind among multilateral institutions.
The 139 member states govern the WTO through the General Council. The AB, meanwhile, is comprised of seven jurists, each representing one of the world's major regions.
But the AB has stood out recently for the far-reaching impacts of the rulings it has made, in cases such the banana trade in the European Union, prawn fishing and its harmful effects on sea turtles, and reformulated Venezuelan gasoline in the United States.
The chief of India's mission before the WTO, Srinivasan Narayanan, commented that the AB ''is the most powerful institution in the world, more powerful even than the G-8 (Group of Eight),'' comprised of the world's seven most industrialised nations and Russia.
''The power of the AB should be frightening to everybody, including the AB members themselves,'' cautioned Narayanan.
The WTO member nations maintained in this week's debate that the AB overstepped its powers in inviting NGOs to present their opinions in the case Canada filed against the obstacles France imposed on imports of products containing asbestos.
The ruling by a special panel, the first level of the WTO dispute resolution procedure, was in favour of France, but Canada filed an appeal that the AB must now settle.
The unique part of the hearing was the participation of NGOs, which have demanded more involvement in, and greater transparency of, the WTO for several years - though especially since the tumultuous street protests staged in the US city of Seattle, Washington, in December 1999.
But WTO member countries expressed discontent with the AB's decision because it acted without mandate on a substantial matter when its jurisdiction is limited to procedural questions, according to Narayanan.
The initiative taken by the Appellate Body represented ''a change in the balance of functions of each body involved'' in the WTO, pointed out Carlos Pérez del Castillo, head of the Uruguayan delegation.
The informal bloc of developing countries in the WTO, coordinated by the Egyptian delegation, mobilised immediately after the AB's ruling was made known Nov 16, and obtained a special session of the General Council, which met Wednesday.
At the close of the meeting - after hearing criticisms from all speakers, except the United States representative - General Council president Kare Bryn, of Norway, announced he would contact the AB and convey ''the sentiments from the meeting that the AB has to exercise extreme caution on this issue.''
The only NGOs that can obtain access to the WTO are those that have the resources to maintain a delegation in Geneva, and almost all such groups are from the industrialised North, commented one negotiator from a developing country.
One thing is to provide access to documents on the WTO's Internet site, but it is quite another to give NGOs direct participation in the proceedings, pointed out the diplomat, who requested anonymity.
The WTO is inter-governmental, emphasised the source, and wondered if the NGOs ask for and receive such a role in the International Monetary Fund or the World Bank.
A group of NGOs had criticised the panel's decision, and the Appellate Body ultimately reviewed the original proposal for participation in the proceedings.
''Obviously they have not learned the lesson of Seattle,'' chastised Remi Parmentier, political director for Greenpeace, the international environmental group.
''Once again, the WTO has arbitrarily dismissed the input of civil society, fuelling concerns about the secretive way it makes decisions that impact human lives and the environment,'' he added.
Negotiators from the bloc developing countries responded that NGOs should pressure the authorities in their own countries. Chakravarti Raghavan, a specialist in trade matters, commented that the General Council and the WTO member states should take action to curb the ''absolute power'' of the Appellate Body.
Otherwise, ''the erosion of the rights of members and creation of new obligations for members would continue until the WTO system loses all legitimacy,'' predicted Raghavan, editor of ''Suns,'' a publication of the Third World Network.
