1. Introduction

Identifying the perceptions of NGO’s towards the trade organization on the scene of the WTO Ministerial Conference in Seattle was much easier than it is today: there was an oppositional force of non-governmental actors acting against the WTO, which stood for “unfair trade liberalization.” The organization was thus “forcing” countries to enact certain disadvantageous policies. Post Seattle, these perceptions have evolved and become more sophisticated as NGO’s started to take the advice of the WTO and participate in advocacy campaigns to change the policy positions of member governments through a variety of tactics. < 1> Today in 2005 most of NGO’s disagreements are primarily with member government policies, or formal procedural issues, if they are disagreeing at all.

However, little literature has addressed the perceptions of the WTO on the evolving NGO role. This is due in part to the fact that the inclusion of NGOs in the WTO negotiation process is relatively new. Literature dating from only 5 years ago is hopelessly outdated, as it grapples with the “phenomenon” of non-governmental organizations post-Seattle. The current debate is no longer what they are doing to block WTO negotiations, but how they are influencing the negotiations – if/how they are included in member governments’ negotiating teams and other issues related to their impact on the constituencies of these nations as well as their integration into the WTO negotiating process. < 2> The organization’s external bureau’s opinions’, which is to say Mr. Bertrand Kuiten, the director of the office, and certain negotiators and officials from members are the only ones that can truly represent individual perceptions or opinions of NGO’s within the organization. It is important to consider the impact of these perceptions which is implied in the organization’s actions towards NGO’s. However, with a permanent staff of only five hundred and a bureau for external relations with non-governmental organizations composed of only five staff members < 3> , most perceptions by the “WTO” can only be derived from its individual members. In this note the first section will be on the direct opinions of officials and Mr. Kuiten towards different techniques of NGO’s, then the following sections will be an analysis of the actions of the WTO member States towards NGO’s and NGO access to the Dispute Settlement body.

The perspective of The External Relations Bureau of the WTO

« Grâce à ce bureau…[nous avons eu accès] a des grandes réunions officielles des ambassadeurs, bref, le bureau nous donne la chance d’accéder à la presse, de rencontrer les négociateurs » (« Thanks to this office.. [we had access to] large meetings with official ambassadors, in general, this office gave us press coverage and contacts with negotiators » ), Mr. Fall, Director of ROPPA, speaking about the external relations bureau at the WTO for NGO’s.

Beginning with the 1996 Marrakech agreement, in article V:2 < 4> the first statement was made about NGO’s. However, as Mr. Kuiten states, after he took office in 1999,

“We fine tuned the Marrakech agreement which defines that members should ‘do something’ with NGO’s and on that basis the WTO members agreed on guidelines for relations with the NGOs < 5> for us [the Bureau of External Relations with NGO’s] to deal with NGO’s. On that basis we have been expanding our relationship with NGO’s on a more informal than a formal basis because the guidelines are very clear: we have to encourage and expand relationships but at the same time the agreement limits the activities”. < 6>

He continues to characterize the relationship between his office and NGO’s as professional, but definitely informal, as it is limited by the mandate, and thus although the office is open for visits, dialogue, and as a forum for access to delegations, the office can not offer accreditation in the same way as other international organizations, such as the UN. There is a “permanent working relationship” between NGO’s and the Bureau and they [NGOs] are also “working with governments on an almost permanent basis [in Geneva]” < 7>

Strangely enough, unlike the plethora of definitions offered by academia,<8> the WTO has no formal definition of an NGO. According to Kuiten, each NGO that applies for Ministerial Conference accreditation is considered on an individual basis and by the knowledge regarding the NGO world by his team. Each NGO is taken into consideration based on the information available to the office. However, Mr. Kuiten does make a distinction between national and international NGO’s when discussing lobbying tactics < 9> as he states his view that national NGO’s logically concentrate more on their home governments and international NGO’s on both fronts international (Ministerial Conferences) and national. He also clarifies the difference between NGO advocacies as falling into four groups: mainstream, focused (one issue), flatly critical and radical. While these groups are quite different, when questioned on specific examples of NGO’s that fall into these categories, < 10> he responded that they were all very well respected and well received because of their ability to “sit down and talk”. The more well respected and influential an NGO is does not necessarily have to do with its positions on issues according to the Bureau of External Affairs. Thus, NGO participation in the WTO negotiating process revolves predominately around their relationships with the member States. The image that the WTO has of NGO’s is not negative or positive depending on their position, but rather a question of influence. The descriptions above are not normative in the sense that there are not “good” and “bad” NGO’s but rather a spectrum of positions that an NGO fits into.

When considering this influence, Kuiten addresses the issue of transparency – a debate that he says has been dead for six years. He simplifies the debate in saying, “who cares if they [NOGs] are transparent? Their influence is what matters- and what their influence means for the WTO and for trade in general”. When ideas that started as campaigns by NGO’s are advocated by countries, that implies an influence by that NGO. This influence is something observed by the WTO, but usually not directly admitted by neither the countries nor the NGO’s, for fears of charges of exploitation on either side. States do not want to be perceived as the footmen of powerful international organizations. NGOs are just as frightened of being accused of collaboration, as one negotiator described it: they would be in the dangerous situation of losing their statue as the carriers of “independent information” or “angelic advocacy, beyond reproach.”

The official position of the Bureau on the relations between States and NGOs is that they are not in a position to tell States nor NGO’s that they can not work together. Mr. Kuiten argues that NGO’s should be allowed to advise countries, which can be positive for small developing countries that don’t have the funding for expertise. His argument continues to imply that if the countries don’t have enough resources they should be allowed to solicit them from NGO’s. However, beyond the Bureau’s neutrality lies the fact that there is a difference between the ways in which Southern countries relate to NGOs (reliance on their expertise for text writing and strategy setting) and how Northern countries relate to them (suspicion, and “management”). If most NGOs are from the North (about 75% according to the Bureau) and southern States rely on their expertise/include them in their delegations, these unelected international bodies are directly participating in negotiations and the democratic deficit becomes more important. Whether it is malevolent or benevolent is not as important as to whether the policy space of Southern states is decreased or increased by the impact of northern NGOs.

This argument fall into a much wider debate on the north/south divide. It could be argued that the enormous gap in resources and access to governmental power results in a situation of a replication of the same divide in international politics. < 11> The financing of Southern NGO’s by Northern NGO’s and the northern NGO partnerships with southern NGO’s on specific issue areas is a grey area that could involve exploitation with an obvious power differential. < 12> This problem is specifically relevant in development issues as well as environmental standards. Kuiten responded to the debate in a surprising manner, stating that he doesn’t have a problem with Northern NGO’s dominating the scene as long as they are supporting Southern issue areas and Southern partners. However, contrary to Kuiten’s opinion, with the writing of certain policy initiatives of southern States by their northern partners, it is difficult to decipher what the “real issues” are to support. When asked about the possible exploitation by Northern NGO’s of Southern States (due to the differences in funding) Kuiten vehemently argues that converse to public opinion, he observes that the true exploitation occurs by a few “star NGO’s” from the South that are pushing countries in directions opposite to their [the country’s] original position. < 13>

For instance, in the cotton debate, the decision to negotiate for cotton specifically as its own issue instead of arguing for food security in all base products, was introduced by northern NGOs (and one southern, but formerly financed by France). The liberal agenda, while echoed by President Traoré’s speech at the WTO, is not necessarily a “southern issue” nor supported by all parties in the South. < 14> In either case, one French Delegate argues that cotton illustrates the success of NGO influence in negotiations- in addition the power of NGOs is one of the reasons that the European Commission decided to go to Cotton Day. < 15> He goes on to state that NGO power and influence may be a single issue phenomenon in cotton. But even if it NGO influence is single issue oriented, the multitude of these issues such as environmental laws and regulations to cotton point in the direction of increased overall influence.

Financing is a very sensitive issue as the fears of a decrease in policy space and exploitation are very real. In order to solve this problem, or at least diminish its impacts, one could argue that 3rd party funding is essential. In fact, Kuiten advocates that the WTO should be funding these Southern NGO’s. Unfortunately; the funds are not there. There is only funding for the Annual Public Symposium where they finance developing countries. This public symposium represents a large portion of their out reach mission and in recent years they have received almost 1200 representatives. < 16> This view by Kuiten is supported in large part by certain academics, such as Ernst-Ulrich Petersmann who advocates that:

“The time and resources required for transnational ‘deliberative democracy’ and ‘governance by discussion’ are the necessary price for promoting the ‘publicity of public goods’ through inclusive ‘cosmopolitan constituencies’ – at national as well as international levels of multilevel trade governance” < 17>

The implications of this recognition of NGOs (and even the realization of a Habermasian idea of democratic participation and a plurality of ideas) implies that the WTO’s perceptions have changed from acknowledging the force of NGOs to integrating them to a certain extent in the process of the multilateral trade discussions. As Peter Van Bosshe and Iveta Alexovicova published recently, “The degree of involvement of civil society in the activities of the WTO achieved to date was generally welcomed… the issue is now how much further this involvement could and or should go”. < 18>

The view of member States

When interviewing members of the delegations there was a sentiment that certain NGOs are useful, however, obviously, anti-trade NGO’s must be “managed”. < 19> While Northern countries dialogue with NGOs, there is definitely a hesitation concerning the immense impact that NGOs have on their constituency, which reduces their policy space. An example is the campaign in Europe for the Humane Treatment of Animals where the NGO’s had influenced the constituency of member States of the European Commission who [the member States] were forced, politically, to adopt these measures. < 20> The media impact of NGOs is not to be considered lightly.<21> As opposed to a publicity campaign for a product or a brand, the marketing of ideas is highly contested by governments who perceive NGOs of having an unfair advantage. < 22> Where governments are perceived by their constituencies as, for the most part, politically motivated and thus untrustworthy, NGOs, while also politically motivated, are perceived as trustworthy and “above petty politics”. Governments, therefore have a very delicate situation with NGOs as the improper ‘management” of certain NGOs could have disastrous political consequences. < 23> In addition, the question of representation is critical for these governments, as many perceive what they consider an unfair influence of these “lobby groups” (NGOs) in regards to their constituency. While NGO representation is an entire topic for another note, there are large complaints from the governmental community that certain NGO’s (those not integrated into governmental delegations) have a disproportional influence in regards to their representation. The influence of the few has changed the minds of many and impacted policy to a certain extent that governments have been very cautious with this new actor. Most countries, specifically in the North work directly with lobbies more than NGOs, as the domestic lobby groups are representative of the interests of their electorate and are incredibly powerful. However, in Hong Kong, the European Commission, for one example of many, had advisors from a northern NGO- Solidar- in their delegation. The question of this inclusion in northern States arises around this issue if it is a true partnership or if it is more accommodating rather than providing an actual forum for exchange. While Giampiero Alhadeff was included as part of the EU delegation and sat next to Mendelson during his meeting with NGOs, the full extent of this inclusion in northern countries is definitely less than in small developing countries that included multiple NGO representatives in their delegations. < 24><25>

Between the Bureau of External Relations and the inclusion of NGO’s in delegations the perceptions of the WTO are that NGO’s and their power to influence are taken very seriously. However, there is a difference between which NGOs are taken seriously and which aren’t. Those that actually work on the substantive parts of the negotiations will only look closely at detailed, technical reports. < 26> However if they do read these reports the information usually comes from “legitimate” NGOs such as those that have expertise in the field or those that have published papers on the subject.<27> NGOs that routinely were mentioned in interviews were: Oxfam, ICTSD, IDEAS and for the French delegates, le GRET.

 

Words into action

While the perceptions of the WTO can be defined by their political statements and their members’ observations, it is ambiguous as to how much influence NGOs have when participating in the delegations. One way to measure the growing influence of NGOs is in their participation in the ministerial conferences. While in the recent Hong Kong Ministerial Conference accredited NGO’s had a significant presence (2000 participants) in the same conference center which facilitated them with 13 rooms for seminars and discussions as well as a large computer lab and flat screen monitors relaying information on meetings. The increase in involvement by NGOs, those “allowed” to participate by the WTO, signals recognition by the organization that it perceives NGOs as an integral part of the trade negotiation process.

The Dispute Settlement Body, an organ of the WTO that allows open participation, is yet another way in which NGOs are integrated into the negotiating system. The Dispute Settlement Body is a unique way of providing consequences to disputes within the WTO, while yet allowing the democratic majority of a country to go back on its international agreement, if it so chooses, for a price. < 28> Even Joseph Nye admits that the design of the WTO should be a model for other international institutions, as it allows democratic decision making at the national level and an order at the international level. The integration of NGOs into this court has been through the back door of amicus curiae submitted to the Appellate Body. “The Appellate Body of the WTO has held that both panels (the tribunals of first instance in WTO dispute settlement) and the Appellate Body itself have the discretion to accept amicus curiae briefs from non-governmental actors.”<29> However, this holding has been the result of a very contentious debate about the extent of non-governmental participation as well as a more general discussion about the legality of the court and its rulings.

“In 1996, four nations challenged the US Turtle-Shrimp law at the WTO as an unfair barrier to trade. In 1998, after months of closed door [sic] meetings and an appeal, the WTO concluded that the US Turtle-Shrimp law violated the rules of the agreement.” < 30> This was commonly referred to as the Turtle Shrimp case , (hereafter the Turtle case)<31>. In this case, three submissions (amicus briefs) were accepted as attachments to the US brief: the Appellate Body accepted these as well as one brief not attached to a Member’s submissions and was sent directly to the Body. < 32> The appellants challenged the US and upheld the position that only briefs submitted by member states should be admitted and that any attachments to briefs should not be allowed. In the end, the Appellate Body based its decision on a technicality by overturning the Panel’s decision that Article 13 implies a prohibition on the acceptance of briefs.<33> However, this decision to accept the briefs was considered rather ad-hoc and was challenged on the both the grounds of legitimacy (the validity of the briefs and the impact of these third parties on the common law procedure) and due process (based on the timelines of the appellant’s ability to reply to these new briefs).

Due to this inquiry, there was a controversy in the Asbestos case in which Canada challenged a French ban on the sale and use of asbestos based on the established grave health effects of exposure. The Appellate body, caving to pressure by delegations, decided to reject the Amicus Curiae briefs by all parties . < 34> This created a gigantic fiasco as the reversal on a legal issue due to political pressure was not received well. Howse regards the following months as a “standoff between the Appellate Trade Body and the ‘club’ [of large, developed countries]”<35> In the end, in another case, Sardines, two amicus briefs were submitted by non-parties (The kingdom of Morocco and the R. Howse). It did not accept either due to the brief’s (ir)relevance to the case, however, it did reaffirm that these briefs would at least be evaluated for relevance in each case. “Having re-affirmed that it had the authority to accept amicus briefs from non-governmental actors, the Appellate Body [it also affirmed the authority to accept third party intervener status from members]”. < 36> Both the Appellate Body and all Panels have no stated rules or mandates regarding participation and amicus curiae brief submission. This fact is not new, however, the growth of NGO participation in DSB jurisprudence signals an increase legitimacy of NGOs in the eyes of members and WTO bodies. < 38> < 39>

This calls into question the legitimacy of certain NGOs, however, only because of their increased influence in the WTO dispute settlement body. Since the DSU is based on common law, the advent of possible precedent due to an amicus brief from a third party, be it a member state or an NGO, could substantially change decisions. Thus, the WTO or the Appellate Body is taking certain NGOs seriously enough to give them a privileged status, unique in the WTO. While this status does not imply that NGOs have neither a vote nor the ability to change the direction, through the courts, of a policy decision of a certain country, it definitely has the ability to affect the dispute settlement court by adding its own opinion.

In conclusion, the indirect influence of NGOs is measured by the WTO in their impact in membership delegations and is demonstrated by the WTO’s actions towards NGOs.

Notes :

¹Information gathered from interview with Mr. Bertan Kuiten, director general of the External relations bureau of the WTO which works with non-governmental organisations. Interview from November 29, 2005. Referred from now on as Kuiten, 2005.

²Kuiten 2005.

³Kuiten, 2005

⁴Cited as the mandate to“make appropriate arrangements for consultations and cooperation with non-governmental organizations concerned with matters related to those of the WTO.”

⁵WTO doc W2L : which "recognizes the role NGOs can play to increase the awareness of the public in respect of WTO activites.”

⁶Kuiten 2005.

⁷Kuiten 2005.

⁸See Jordan and Tuijl , « Political Responsibility in Transnational NGO Advocay » World Development 28(2) 2000. ; Johnson and Wilson, “Biting the Bullet: Civil Society, Social Learning and the Transformation of Local Governance”, World Development 28(11) 2000 and Bossche and Alexovisaa, “Effective Global Economic Governance by the WTO”, Journal of Economic Lax 8(3), 2005, to name a few.

⁹ For national NGO’s, the lobby exercise at the ministerial level is much less sophisticated than lobbying at home because there are too many people at the conferences. For International NGO’s they are active at both the international and national level. Their approach is to pick a specific issue, research it, try to understand it, talk to negotiators, businesses the secretariat and come up with propositions and idea” (Kuiten 2005)

¹⁰Such as Oxfam, ROPPA (Organization of Agricultural Producers in West Africa), ENDA tiers monde, ABONG and IDEAS.

¹¹ See Wilson and Johnson, « Biting the bullet: Civil Society, Social learning and the transformation of local governance » . The discussion on partnerships and the normative claim of participations leading to the empowerment of disadvantaged groups (“invisible individuals, groups, or organizations) is broken down into a 3 level matrix of “power to” power over” and “power with”. They conclude that the concept of community necessarily excludes certain groups and may in fact re-intrench power discrepancies.

¹²Interviews with Northern NGO’s as well as Southern NGO’s showed that the partnerships were essential on a resource level, and Northern NGO’s indicated that it was more of a division of labor on a global and local level, however, the resolution of specific disagreements remains an unanswered question by both parties.

¹³Kuiten 2005.

¹⁴For instance ROPPA, the “reséau d’organisations paysans d’Afrique” is a very strong organisation that lobbies for overall protection of all base products in the name of Food Security.

¹⁵Although he goes on to say that their influence “complicates” matters and is not welcomed by the government.

¹⁶Cf. Ernst-Vlirich Petersmann in « Addressing Institutional Challanges to the WTO » , Journal of Economic Law 8(3) 2005. He defends the position that increased financial assistance for LDCs and an institutionalisation for the Annual Public Symposium would increase incentives for NGO participation.

¹⁷Ibid, p. 655.

¹⁸ Bossche and Alexivocova, “Effective Global Governance by the World Trade Organisation”, Journal of Economic Law 8(3) 2005

¹⁹ Based on Interview with EU delegate 1.

²⁰Ibid.

²¹Based on Interview with German delegate who underlined the impact of NGOs in negotiations in general.

²²Based on Interview with EU delegate 1.

²³Governments often complain about the media’s preference for the NGO (i.e. impartial) opinion and are much more concerned with critiquing the State’s policy and make-up (i.e. democratic representation) rather than focusing on the NGO’s.

²⁴From conversations with US and EU delegates.

²⁵ Specifically the delegation for Bénin, that included members of Aproca in its delegation.

²⁶Additionally, Panellists at the Maastrict university discussion on the Sutherland Report were proved wrong in their analysis that developing countries were against the involvement of NGOs. P.681

²⁷From Interview with a member of the French delegation, who works with the WTO and the EU.

²⁸Interview with French Delegate 1.

²⁹Nye, Joseph, The « Democracy Deficit » in the Global Economy, Washington Press, 2003.

³⁰ Howse, Robert, « Membership and its Privileges: the WTO, Civil Society, and the Amicus Brief Controversy » , European Law Journal, 9(4), September 2003. p. 497

³¹www.seaturtles.org/pdf/ACF10AF.pdf

³²The US Endangered Species Act requires US shrimpers to use TEDs on their vessels. A provision of the Act, the US Turtle-Shrimp law, created economic incentives for other nations to develop laws requiring the use of TEDs or methods that achieve comparable levels of protection. www.seaturtles.org/pdf/ACF10AF.pdf (accessed January 12, 2006)

³³ For an in-depth analysis of the legal aspects of this decision see Howse, Robert, ibid. p. 499-505.

³⁴ The decision was based on the definition of seek and the right of the appellants to seek information in fact-finding missions and whether briefs submitted by NGOs were considered seeking information. Again, for a clear discussion, see Howse, Robert.

³⁵This was done by rejecting all third party briefs submitted by a new “special procedure” to handle Amicus Curiae briefs.

³⁶Ibid. 24. p. 505.

 

³⁷ Ibil. P.508

³⁸However not in the Appellate Body as a whole, as Howse reiterates, on pg. 509.