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. “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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