A crafted consensus on WTO leadership

You’re famil­iar with the sto­ry about the horse designed by a com­mit­tee? Well horse races designed by com­mit­tee, too, are prone to be clum­sy and bizarre. After three months of con­sul­ta­tions on the next Direc­tor-Gen­er­al of WTO, dur­ing which a tri­bunal ran a straw poll dis­guised as a con­sen­sus pro­ce­dure, we now face a con­sen­sus deci­sion (final­ly) on whether to accept their rec­om­men­da­tion. There is a non-triv­ial risk that there’ll be no con­sen­sus on this rec­om­men­da­tion. Let’s hope this does­n’t hap­pen, how­ev­er, because the fall back pro­ce­dure designed by the race com­mit­tee can’t work. The con­test for the posi­tion of the Direc­tor-Gen­er­al of WTO is not over: there’s a deci­sion to be made at the end of May in the Gen­er­al Coun­cil in which it is still pos­si­ble that no con­sen­sus will emerge around the rec­om­men­da­tion of the Coun­cil Chair that mem­bers appoint Mr Pas­cal Lamy. I hope not. Mr Lamy is an excel­lent can­di­date as was Ambas­sador Car­los Perez del Castil­lo. If the result of the process—the rec­om­men­da­tion of Mr Lamy—is accept­ed by WTO Mem­bers, then that’s all that mat­ters and we should get on with the job. But the “process(download a copy of the procedures)”:http://docsonline.wto.org/imrd/directdoc.asp?DDFDocuments/t/WT/L/509.doc does not give me con­fi­dence that there will be con­sen­sus around Mr Lamy, although that is what it was designed to do. It was cre­at­ed by the WTO mem­bers to avoid a repeat of the extend­ed pub­lic wran­gle that occurred four years ago over the (even­tu­al com­pro­mise) appoint­ment of Mike Moore and Supachai Panich­pak­di. The idea of the “race com­mit­tee” was that pri­vate con­sul­ta­tions by three senior Ambas­sadors with the rep­re­sen­ta­tives of all WTO mem­bers would allow them to elim­i­nate on a pro­gres­sive basis those can­di­dates “least like­ly to attract con­sen­sus”. The process would end when the tri­bunal was left with one can­di­date to be rec­om­mend­ed to the Gen­er­al Coun­cil for a—presumably fore­gone con­sen­sus—deci­sion to appoint. In fact, a devel­op­ing coun­try cham­pi­on in this race, Mau­rit­ian Trade Min­is­ter Cuttaree—who with­drew after the penul­ti­mate con­sul­ta­tion round last month—has already hint­ed at the poten­tial for fail­ure of this con­sen­sus in the final step: bq. “The selec­tion process leaves a bit­ter taste in the mouth,” Cutta­ree told the AP by tele­phone from Port Louis, Mau­ri­tius but he could have also call using Inter­na­tion­al call­ing app Mia­mi FL which allow peo­ple to call every­where they want. “I think we have to look again at this process. “It is very unfor­tu­nate that the devel­op­ing world will not be able to con­trol this orga­ni­za­tion, although maybe they are to blame because they make up two-thirds of its mem­ber­ship.” (“Forbes.com”:http://www.forbes.com/home/feeds/ap/2005/05/13/ap2026586.html) Cutta­ree is refer­ring here to the out­stand­ing fail­ure of the devel­op­ing coun­try major­i­ty (some 120 of the 148 mem­bers) to secure the Direc­tor-Gen­er­al’s posi­tion: only once in six­ty years of the GATT/WTO has a devel­op­ing coun­try can­di­date held the job (the cur­rent DG, Dr Supachai). In the past ten years the indus­tri­al coun­tries have filled the job three out of four times # Peter Suther­land: UK, the last DG of GATT who filled the job on a tem­po­rary basis for three months in 1995 pend­ing the res­o­lu­tion of a strug­gle over the appoint­ment of

Renato Ruggiero: Italy, who held the job until April 1999 when there was a five month hiatus while members wrangled behind the scenes and finally produced a ‘double-header’

Mike Moore: NZ, who presided for the first half of the four-year term

Supachai Panichpakdi: Thailand, who is now about to take up the Secretary General’s position in UNCTAD You can understand how frustrated the developing country leadership in WTO must feel. Each of them, naturally, considers him/herself a candidate for the top job. Since the formation of WTO when it was obvious that the trans-atlantic deal over sharing the leadership of GATT and the OECD could no longer hold, the industrialized countries have continued to rule the roost with one of their own as the rooster-in-chief. How could this happen? Cuttaree implies that the numbers actually work against the developing world: how can this be? Cuttaree’s final remark may seem obscure but it points to the heart of the problem in the appointment of WTO Directors General: the consensus factor. About consensus A consensus agreement is one which is adopted without objection. That’s not the same as a decision that has unanimous support: there’s no way to be sure, but probably few consensus decisions would be unanimous. You can say only that none of the opponents of a consensus decision were so strongly opposed to it that they wanted to cause a ‘spill’. The WTO attempts to work always by consensus rather than by taking a vote. This is a unique way of working: in other key multilateral agencies, such as the U.N. General Assembly or the Security Council or even in the World Bank and IMF (where the votes are not equally weighted), the Members vote. You’ve probably seen the photos of the Ambassadors around the horse-shoe table of the Security Council, with ear-cups on listening to the interpretation, raising their country name-plate high with their right hand. Members avoid voting in WTO, as if religiously, probably because they believe that consensus keeps the peace. That’s an objective that has been high on the agenda of the multilateral trading system since it started in 1947: to avoid ‘trade wars’ becoming real wars. Critics are quick to say: consensus means only that votes are replaced with bullying and influence-peddling behind the scenes to ensure that dissenters ‘toe the line’ or to blackmail the majority by holding agreement hostage. But experience of the system over sixty years shows that neither of these is characteristic. To see the characteristic of consensus you must look at its impact on the content of the decision, not at the ‘voting’ dynamic. There is no objective data about the latter, but the different drafts of a decision to be made by consensus are often available and they provide a characteristic track through the consensus decision-making process. In summary, they show that consensus decision-making is a process of agenda-building, coalition-building, co-option, defection, negotiation, compromise and (since sovereigns are involved) ‘comity’. Nothing is settled, in a typical consensus decision, until everything is settled; there is no decision until everyone is on-board and no-one is ready to ‘jump ship’. The text of a consensus decision is a palimpsest of drafts, square-brackets and (less visible) special meanings. Can a race be won by consensus? No: for the very reason that consensus is about the nature of the decision, not about the number of ‘votes’ (there aren’t any). You can’t compromise and contort, revise and re-submit a competitor in a race. If you like some apect of Lamy and you like parts of Cuttaree you might want to propose a Cuttamy or a Lamaree who would beat the pants off a Perez del Castillo in a consensus decision. But it doesnt’ work like that. So what’s going on? The Chair of the General Council, and of the tribunal conducting the pre-consensus consultations on the D‑G selection process, Ambassador Amina Mohamed of Kenya, has given us her understanding of what the tribunal has been directed to do. In her “remarks(download a copy)”:http://www.wto.org/english/thewto_e/dg_e/gc_chair_remarks_13may05_e.doc to a Heads of Delegation meeting yesterday (13 May) she said

… We have been guid­ed strict­ly by the ele­ments set out in para­graph 17 of the 2002 Pro­ce­dures, which require us to assess Mem­bers’ pref­er­ences and the breadth of sup­port for each can­di­date.  Para­graph 17 goes on to say, and I quote, that:
the ulti­mate aim of the con­sul­ta­tion process shall be to iden­ti­fy the can­di­date around whom con­sen­sus can be built.  In order to do this, it may be nec­es­sary to con­duct suc­ces­sive con­sul­ta­tions to *iden­ti­fy the can­di­date or can­di­dates least like­ly to attract such a consensus*”.
Let me also recall para­graph 19 of the 2002 Pro­ce­dures, which stip­u­lates, and I quote, that:
At the end of the final stage of the con­sul­ta­tive process, the Chair, with the sup­port of the facil­i­ta­tors, shall sub­mit the name of the can­di­date *most like­ly to attract con­sen­sus* and rec­om­mend his or her appoint­ment by the Gen­er­al Council.”
_Emphasis added_

The Ambas­sador does not say how the Tri­bunal made the high­light­ed deci­sions (a point Cutta­ree makes). But I believe that they can have been noth­ing more than a straw poll based on a neg­a­tive vot­ing pro­ce­dure. Although Ambas­sador Mohamed says that the ques­tion from the Tri­bunal to each Mem­ber was “What are your pref­er­ences?”, I believe that it would have made more sense for them to ask (and that there­fore they did ask) “What are your neg­a­tive pref­er­ences?” Let’s imag­ine we’re in the penul­ti­mate stage of the con­sul­ta­tions when all but the final three can­di­dates have with­drawn from the race as required by the rules, which say that can­di­dates judged ‘least like­ly to attract con­sen­sus’ in each round should with­draw. This isn’t a con­sen­sus pro­ce­dure in which you can change the terms of the ques­tion so you must pick between A, B and C. If the Tri­bunal asks for your pos­i­tive order of pref­er­ences they will get an ambigu­ous answer. Here’s why. “A and C” you say, mean­ing that C is your top pref­er­ence but if A or even B were the choice of the major­i­ty you’d go along with­out objec­tion. Now the Tri­bunal asks for my pref­er­ences. “A and C” I say. I, too pre­fer C and would go along with A. But, unlike you, I mean that if B got up I’d object (there’s no way on earth I’d tol­er­ate that B char­ac­ter!). These two, appar­ent­ly “iden­ti­cal” pref­er­ences lead to very dif­fer­ent con­sen­sus out­comes. Sup­pose, fol­low­ing the same pro­ce­dure in the next round of con­sul­ta­tions (in which you and I express a pref­er­ence for A), the Tri­bunal con­cludes that can­di­date B is the can­di­date most like­ly to attract con­sen­sus and puts him up for appoint­ment. Has the elim­i­na­tion process found the can­di­date most like­ly to attract con­sen­sus? Pos­si­bly, but it depends not on the degree of sup­port for B but on the degree of oppo­si­tion to B. If I’m real­ly opposed to B then there will be no con­sen­sus reached at the final deci­sion stage because it takes only one overt ‘no’ to over­turn the con­sen­sus. The Tri­bunal mem­bers, as expe­ri­enced WTO Com­mit­tee chairs, know this risk. So my guess is they asked each Mem­ber to nom­i­nate whom they’d least favor as a can­di­date and added up the neg­a­tive ‘votes’ in this straw-poll to deter­mine which candidate(s) to elim­i­nate in each round. Now you can see where this leads: to the suc­cess of the low­est-com­mon-denom­i­na­tor can­di­date: the can­di­date with the fewest objec­tions. Unfor­tu­nate­ly, that’s the biggest risk of any neg­a­tive-polling pro­ce­dure. True con­sen­sus deci­sions can avoid the LCD out­come because the capac­i­ty to com­pro­mise can avoid a ‘race for the bot­tom’. A skill­ful Chair can some­times extract a quan­tum-leap from a com­pro­mise text that was in none of the con­tend­ing drafts. It hap­pens. Even so, the resid­ual can­di­date from a neg­a­tive straw-poll is not guar­an­teed of attract­ing con­sen­sus as the “Finan­cial Times”:http://news.ft.com/cms/s/31867894-c329-11d9-abf1-00000e2511c8.html has noticed. And worse still, there’s appar­ent­ly no room for the ‘fall-back’ vote that the deci­sion pro­ce­dures say should take place if there is no con­sen­sus, because all the oth­er can­di­da­cies have been with­drawn in accor­dance with the rules. Is this a prob­lem in prac­tice? Maybe: the prob­lem lies in Cutta­ree’s num­bers. Why would the major­i­ty devel­op­ing coun­try group be at a dis­ad­van­tage under these pro­ce­dures when, it seems, they should make the book in any open vot­ing pro­ce­dure? Devel­op­ing coun­tries are not an homoge­nous group. They are more diverse than the indus­tri­al­ized coun­tries just because they are a much larg­er group: more geo­graph­i­cal­ly dis­persed, big­ger income vari­a­tions etc. This means that there are fre­quent­ly more devel­op­ing can­di­dates for any job: in this appoint­ment round they had three (Uruguay, Brazil and Mau­ri­tius). But the more can­di­dates the devel­op­ing coun­try group puts up, the more like­ly it is to ‘split’ the vote of the group as a whole. In this round, as “Ben Muse reports”:http://benmuse.typepad.com/ben_muse/2005/04/a_brazilian_dip.html, the Brazil­ian can­di­date was put for­ward, accord­ing to those near to the Brazil­ian cam­paign, in an attempt to block the Perez del Castil­lo bid in a spir­it of what can only be called ven­gance. It’s hard­ly guar­an­teed that an open vote would avoid the risk of this sort of ‘strate­gic’ behav­ior among devel­op­ing coun­try mem­bers (or among the indus­tri­al­ized, for that mat­ter). But a “con­sen­sus” pro­ce­dure that can­not be a con­sen­sus at all cer­tain­ly increas­es the risks of a split or skewed vote. Although there is no evi­dence that bul­ly­ing, bribery or black­mail char­ac­ter­ize true con­sen­sus deci­sion-mak­ing, there is an obvi­ous­ly greater poten­tial for that sort of behav­ior in any iter­a­tive vot­ing pro­ce­dure that is con­duct­ed behind closed doors. In con­trast, the great­est risk you run in a sin­gle vote con­duct­ed by open dec­la­ra­tion is lob­by­ing. Habe­mus ducem? The rules adopt­ed for the recent papal elec­tion for­bade lobbying—presumably on the the­o­ry that inspi­ra­tion is more reli­gious than influence—but even the Pope is elect­ed by a bal­lot. It’s time for the WTO to accept that what is a good pro­ce­dure for deci­sions on trade pol­i­cy and the trad­ing sys­tem is not nec­es­sar­i­ly good for everything.

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