ࡱ> VXWE@ :bjbj "f/%fff|8 |,@("$OR!: , H6 0@RS"S"S".D xpϲʹ PUBLIC SYMPOSIUM ϲʹ after 10 years: Global problems and multilateral solutions Wednesday 20 April 2005 15.00 18.00 hrs Room A ϲʹ IPU Panel: Transparency and Participation in the National Trade Policy Process. Moderator: Mark Halle International Institute for Sustainable Development (IISD) Speakers: Susan Aaronson Kenan Institute of Private Enterprise, Washington, D.C. Robert Wolfe Queens University School of International Policy, Canada Ambassador Toufik Ali Mission of Bangladesh K. G. Anthony Hill Reflexion Group, Geneva Caroline Dommen 3D Ambassador Manzoor Ahmad Mission of Pakistan Speaking Notes (Ambassador Hill): The institutional arrangements for policy-making and implementation in ϲʹ Member economies composed generally of less-developed and developed countries, market or state trading economies, countries in transition from centrally planned to market economies differ markedly, including their sovereign characteristics. Independent and customs territories have equal standing as Members in the organisation of the ϲʹ and its bodies. A representative of a customs territory, Hong Kong, China presided as Chair of the second highest ϲʹ body, the General Council and later this year will preside over the Ministerial Conference, the highest body. In each of these groups of countries there are equally marked differences. These differences mark the extent of openness, transparency, and participation in respect of the interests served and the risks borne in economic transactions, both in domestic and international markets. And this extends to formulation, negotiation, implementation and enforcement, where formal rules may tell one story and practice another. The significant point is to recognise the degrees of difference, specifically how the gains from trading in goods and services are shared within the society and how to secure the balance of benefit from participation in international trade, specifically the open multilateral trading system managed jointly through the GATT/ϲʹ Agreements (formal rules) and institutional arrangements (of organisation made up of an appointed Director General and Secretariat staff, decision-making bodies of Members and third parties serving on panels and the Appellate Body). There is a sea of difference between what organisations and institutions are their formal structures, functions and web of relationships, and their responsibilities and accountability, especially in legal terms. The former are primarily bureaucratic by custom and practice and focused on mission. The latter are essential and inseparable parts of the constitutional matrix of Agreements, bodies carrying out duties, embodying practices and procedures, settling disputes to fulfill agreed objectives in the public interest. Together, they are the main visible components of the open, multilateral trading system and reflect principles of representative, separation-of-powers, rights-and-obligations in national and international law. Members must meet certain requirements to become formal equal partners in the system of reciprocal rights and obligations. Does the ϲʹ meet these high standards in large or small measure? How sharp is the distinction between the formal rules and informal arrangements? How can Members with less institutional competence (including historical experience) and weak business networks play effective roles in the ϲʹ? We have heard the presentations made by Susan Aaronson, Robert Wolfe and Toufik Ali. I shall make a few observations on some of the issues raised in the presentations, and a number of the concerns discussed over a number of years in both GATT and ϲʹ. Are the operational principles of transparency and participation in the national trade policy process, important as they may be the most critical in ensuring benefits to citizens and increasing general welfare? Observations: Transparency is at its core an ethical, social operational principle. Those who wish to avoid allegations of conflicts of interest will act transparently; those who wish to secure respect for decisions by contracting parties, especially those of a binding nature, must ensure that decisions are transparently determined, not only by the inclusion of all members in the different stages of the process, but equally by not withholding information vital to a fair outcome and the balance of benefits. These hold true at both the national and multilateral levels. One without the other is likely to lead to less than optimum welfare benefits. At the national level, Trade Policy Reviews are contributing much to the process of open and transparent trade policy formulation. There are, however, troubling developments. These relate to the intrusion of the international financial organisations, led by the IMF and World Bank, in the areas of trade policy, with policy advice and conditionalities neither consistent nor coherent with developing country Members rights and obligations negotiated in the Marrakech Agreements. Many of you will have followed the campaign by parliamentarians in several countries along with a number of public policy non-governmental organisations urging greater democratic oversight of IMF and World Bank policies. This campaign is to culminate in an International Parliamentarians Petition at the Bank/Fund Spring 2005 meetings. (See  HYPERLINK "http://www.IPPINFO.org" www.IPPINFO.org). I believe that transparency beginning at home, finds fertile ground at the regional and multilateral levels. This ethical, social operational principle is integral to many of the constitutional arrangements at national level. To a large extent the ϲʹ agreements impose certain obligations on Members in respect of Notifications to be made, in general and specific instances. Moreover, the binding of tariffs and their publication is to ensure predictability and competitive conditions for trade. The so-called grey area measures used as protectionist measures were precisely non-transparent and in violation of the spirit and letter of GATT rules. These non-transparent measures are possible when special interests either capture the trade policy process, especially the negotiation and implementation stages, whether nationally or internationally. Where the Secretariat/Organisation, either by commission or omission performs its many activities tending to the positions of these special interests, non-transparency of bureaucracies becomes an issue. But how to deal with it raises a set of issues that have not risen to the top of the agenda. Special interests, especially those with clear objectives and the means to pursue them are clearly at an advantage in influencing outcomes. With the rapid expansion of international trade carried out by increasing numbers of contracting parties/members, traders in goods and services, and the rise of integrated multi-national enterprises accompanied by the weakening respect for state institutions and the rising power and influence of multilateral financial institutions, there are ever larger numbers of participants. Participation, its nature and context is a socio-political operational principle. In the ϲʹ there are concerns that participation in decision-making processes is guaranteed only to the commercially important national interests of the major trading nations and larger developing countries. Further, that in the dispute settlement procedures they are at the very least, at a distinctive disadvantage in both the panel and Appellate processes. In any large body there will of necessity be the need for manageable negotiating bodies of efficient and effective size. Hence participation raises the principle of representation. For the open multilateral trading system to provide benefits to larger numbers of citizens in all countries, will require more openness, transparency and participation. At the national and international levels, there are two groups that are affected in one way or another. On the one hand, parliamentarians, the constitutional representative institution at the national level for oversight, taxation, and treaty ratification (rule-making). With rare exceptions, parliamentarians seem to play a less than effective part in all aspects of trade policy. Hence, the calls for redressing the imbalance with respect to the executive and special interests. Proposals are advanced for greater technical competence in trade matters among parliamentarians and steps to influence ϲʹ negotiations. The proposals and declarations of the Inter-Parliamentary Union and the European Parliament are important. (See  HYPERLINK "http://www.ipu.org" www.ipu.org). On the other hand, the poor that are disorganised and in a daily struggle for survival. Poverty is high on the international agenda. But it is far from clear what the present ϲʹ negotiations and its organisational structure will contribute to reducing the numbers of poor and alleviating their miserable conditions, in the majority of its membership. Systemic institutional changes to allow for the fuller participation of the less-developed economies are clearly required for the gains from trade to be equitably spread among their producers and consumers. There is also the need for a much clearer understanding of how the formal legal rules can be managed in ways that bring advantage to those who have stronger governmental and business networks. Benefits, especially for developing countries, can be achieved only through active participation in the permanent negotiating forum that the ϲʹ is, by all Members and the practice of transparency on a regular and continuing basis. K.G.A. Hill 19 April 2005 [End of Document] Addendum: Article VIII - Status of the ϲʹ The ϲʹ shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions. The institutional issues include, inter alia, rules of organization, a process currently underway in ϲʹ defining the constituent instruments, decisions and practice of the ϲʹ in accordance with its rules. This concerns the moot point as to the circumstances in which responsibility for the effect of an act of omission or commission may be attributable to the international organization, ϲʹ. Given the critical role played by the secretariat in all aspects of dispute settlement in the ϲʹ, including offering commentary on negotiating history (of which there is no authorized version), interpretation of rules and procedural rules, this would appear to be an important area for review by Members. Is there undue weight given to GATT established practice and not sufficiently to those practices set out within the constituent ϲʹ instruments? How are amendments to be treated, especially when they are effected without the explicit approval of Members? Another important issue is the principle of specialty, by which the international organization is vested with powers limited by the functions entrusted to them by States. Here it is important to note that the ϲʹ is not an intergovernmental organization of sovereign States. Its membership includes, with equal status, countries having control over their customs functions but exercising no constitutionally sovereign powers that would have them seated in the United Nations, either the General Assembly or the Security Council. Yet these customs territories have the right to make binding and enforceable rules beyond customs disputes, sometimes exceeding the scope of the Security Council and its life and death sanctioning powers. There is mounting evidence that the ϲʹ though a specialist trade body has acquired and is exercising general competence in areas beyond the boundaries of trade and extending its scope of conduct and responsibility well outside the limits of the treaty powers vested by its Members. Might we see one day a Declaratory Judgment by the International Court of Justice or by the competent constitutional court within a national jurisdiction that a ϲʹ ruling was ultra vires? K.G.A Hill 19 April 2005 [End of Addendum]  Article VIII - Status of the ϲʹ The ϲʹ shall have legal personality, and shall be accorded by each of its Members such legal capacity as may be necessary for the exercise of its functions.  Article XVI - Miscellaneous Provisions Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements. This includes commitments on Notification under other agreements.  Article IX Decision- Making and Article X Amendments are relevant - The Ministerial Conference and the General Council shall have the exclusive authority to adopt interpretations of this Agreement and of the Multilateral Trade Agreements.     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