WTO and Governance
KeywordsWorld Trade Organization Trade Liberalization Trading System Global Governance Dispute Settlement
Globalization has created both opportunities and challenges. The international trading system, embodied in the World Trade Organization (WTO), is rightly celebrated as one of the great successes exploring these opportunities and a medium to tackle these challenges (Sutherland et al. 2004). As the governments, after the Second World War, were looking for a trade institution, the General Agreement on Tariffs and Trade (GATT) as a de facto organization before the creation of WTO and now the WTO has success stories not only in trade liberalization but also in global trade governance. To secure a better governance, WTO sets some ambitious objectives which are to raise the standard of living and ensure full employment with growth in real income and trade while providing for the optimal use of the world’s trade resources (Agreement establishing the world trade organization). Another important feature of the WTO is to focus on the trade development issues as well as concentrate on many issues such as human rights and environmental protection which are not normally considered before to be in the domain of traditional trade policy (WTO Analytical Index: Guide to WTO Law and Practice). Question relating to the applicability and accomplishment of the WTO rules relating to the dividing line between WTO rules, national sovereignty, and the other international organizations might elevate when someone attempts to discuss the WTO’s role in global governance. Pascal Lamy, former Director General, once correctly figured out this problem and remarks that, in both public and academic discourse, analysis of the WTO generally results in either extreme criticism or excessive praise, with the result that discussions are dominated by two opposite positions. On the one hand, some globalization critics assert that the WTO holds a hegemonic grip on global issues, while others denounce the WTO’s isolation as an international rule setter and compliance enforcer. Proponents of a rule-based view of international relations, on the other hand, promote the WTO as a model for global governance (Sampson 2001). With this type of reaction in mind, the first two paragraphs after the introductory remarks of this contribution talked about the key definitions for better understanding and reformation of GATT to WTO and their role of trade governance for the past few decades. Then it tried to examine the contributions of WTO in specific trade-related issues and give some focus on non-trade-related issues. The WTO profile has also changed because of the greatly strengthened dispute settlement mechanism. So in the next paragraph, it attempted to examine how the dispute settlement mechanism makes it the only international organization with an effective judicial tool to ensure compliance with its rules. Two-thirds of WTO members are now developing countries. Having undertaken new and demanding obligations, their legitimate expectation for the next chapter flourished on whether WTO will provide a forum in which their views can be effectively expressed and their concerns adequately dealt with. In the concluding remarks, some of the fundamental aspects of the world trading system that are important to its future directions are recommended.
Reciprocity: Reciprocity refers to the practice that occurs in negotiating rounds and maintaining a smooth trading relationship whereby one country offers to reduce a barrier to trade and a second country “reciprocates” by offering to reduce one of its own trade barriers (Hoekman et al. 2002).
Most-Favoured-Nation Treatment: Most-Favoured-Nation (MFN) treatment creates an obligation for member states to prohibit discrimination between other members. It thus requires members to accord the most favorable tariff and regulatory treatment given to the products and services of any one member at the time of import and export of “like products” to all other members. The first article of the General Agreement on Tariffs and Trade (GATT), the second article of the General Agreement on Trade in Services (GATS), and the fourth article of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) are giving priority to this treatment over other articles considering its significance in the WTO trading system (Bossche and Zdouc 2013; Understanding the WTO: basics-principles of the trading system).
National Treatment: Under the national treatment rule, members must not accord discriminatory treatment between imports and “like” domestic products (with the exception of the imposition of tariffs, which is a border measure). This principle is also found in all the three main WTO agreements (Article 3 of GATT, Article 17 of GATS, and Article 3 of TRIPS), although once again the principle is handled slightly differently in each of these (Understanding the WTO: basics-principles of the trading system).
Safeguard Measures: Safeguard measures are defined as “emergency” actions with respect to increased imports of particular products, where such imports have caused or threaten to cause serious injury to the importing member’s domestic industry (Article 2, the Agreement on Safeguards) (WTO Analytical Index: Guide to WTO Law and Practice).
Subsidies: Subsidies include various forms of government support, including financial grants, subsidized loans, loan guarantees, tax exemptions or reductions, and research and development supports. The government can also support an industry by building production facilities and infrastructure for them (Lee 2006).
GATT to WTO: The Changing Role of Trade Governance
The world has witnessed a dramatic increase in both the value and volume of world trade after the Second World War. To govern the tremendous pressure of trade, WTO/GATT rules play a significant role in trading governance since the world trade has grown more rapidly than the world production in almost every year. After the Second World War, the world had faced a serious economic crisis. Since then the governments had initiated on a variety of efforts to reduce or to eliminate import restrictions and export subsidies (Global Problems, Global solutions: Towards Better Global Governance, 2010). The motivation behind the trade liberalization was to increase the volume of trade, to promote economic growth, and to improve living standard worldwide. After the end of War, a number of international negotiations were set in motion in order of creating institutional structures for the conduct of international relations in the postwar period. The original intention was to create a third institution (International Trade Organization) to handle the trade side of international economic cooperation, joining the two “Bretton Woods” institutions, the World Bank and the International Monetary Fund (Understanding the WTO: basics). After the success of Bretton Woods, one of the most important negotiation processes at the time was the United Nations Conference on Trade and Employment, held in Havana, Cuba, in 1947. At the end of the conference, the Havana Charter for the International Trade Organization (ITO) was adopted, though the ITO charter was considered very ambitious as it covered not only the basic trade issues but also thought about the importance of employment, commodity agreements, economic development, and restrictive business practice. As part of the negotiations on the Havana Charter, a group of countries engaged in tariff negotiations and in 1947 agreed to substantial tariff reductions. Due to the pending status of the Havana Charter to entry into force, a mechanism was needed to implement and protect the tariff concession negotiated in 1947. For doing so, it was decided to take the Chapter on Commercial policy of the Havana Charted and convert it, with certain obligations, into the General Agreement on Tariffs and Trade (GATT). To bring the GATT into force quickly, a “Protocol of Provisional Application” was developed on June 30, 1948. However, for various reasons including the failure of the United States to ratify it, the Havana Charter never entered into force (Croome 1998). From 1948 to 1994, the General Agreement on Tariffs and Trade (GATT) thus provided the rules for much of world trade and presided over periods that saw some of the highest growth rates in international commerce. It seemed well established, but throughout those 47 years, it was only a provisional agreement and organization until the WTO was established in 1995 (VanGrasstek 2013). Since then, the World Trade Organization (WTO) has operated as the institutional framework for the world trade governance (Lee 2012). The means available to the WTO to achieve its goals are trade liberalization and the conduct of trade according to multilaterally agreed rules. The success of WTO as a dynamic institution that has fostered dramatic increases in worldwide trade lies in its founding principles of reciprocity and nondiscrimination (Hoekman et al. 2002). The importance of eliminating discrimination is highlighted in the Preamble to the WTO Agreement, where the “elimination of discriminatory treatment in international trade relations” is identified as one of the two main means by which the objectives of the WTO may be attained (Bossche and Zdouc 2013). In addition to guaranteeing these principles, WTO is also trying to lower trade barriers among its member countries, ensuring predictability and transparency; discouraging unfair practices, such as export subsidies and dumping products at below cost to gain market share; giving the developing countries a greater flexible and special privilege; and permitting members to take measures to protect not only the environment but also public health, animal health, and plant life for making a secure place for trade governance (Understanding the WTO: basics). All these principles, the idea of moving toward more, rather than less, seem very much consistent with the global trade governance. It is believed by the policymakers that the strong multilateral rule-based trade regime, attained through the WTO, is essential to developing a system of governance of the global market (Sampson 2001).
Trade Governance Within WTO
The WTO and its predecessor the GATT comprise the international system of rules governing trade. WTO rules are not only covering and applying strictly to the one-fifth of the world trade production but also issues related to goods and services that may never enter into a trade. The WTO provides the institutional framework for a unique system of rights and obligations for trade in goods and services and for certain aspects of intellectual property underpinned by rules and procedures for the settlement of disputes (“Agreement establishing the world trade organization”). These rules extend vast areas of trade-related measures and reach deep into domestic regulatory measures. Domestic regulations relating to support measure for agriculture, subsidies, safeguard, countervailing measures, anti-dumping, patent, and protection of intellectual rights are all subject to WTO discipline. Some WTO agreements also raised a question about the patenting of life forms, the role of precaution in the absence of scientific evidence, compulsory licensing to provide access to essential medicines, and the rewarding of indigenous peoples for pharmaceutical discoveries (Jones 2015; Steger 2009). Though WTO rules do not actually discuss governance, the WTO Secretariat and other observers have believed that improved governance is a spillover of its efforts to promote open trade. WTO helps its members and upcoming members to cope with the challenges of global trade governance by improving the norms of good governance (accountability, responsive, equitable and inclusive, effective and efficient, follow the rule of law, participatory and consensus oriented (10 benefits of the WTO trading system; Hoekman and Kostecki 2009; Weiss and Steiner 2006). Members of the WTO use the system to improve governance among nations, such as a country who wants to join this rule-based system. Working parties comprised of other WTO member states closely monitor potential members and make sure these nations meet their commitments. Once these acceding nations become members, they are monitored through trade policy reviews and can be challenged in a trade dispute. In short, the WTO has a feedback system to hold members to account for their trade practices and governance commitments (Aaronson and Abouharb 2013). It is tough for a nonmember to get the status of a member of the WTO. New members must reduce trade-distorting rules and regulations and make a significant reformation to their governance process and strategies. Countries with better governance may find an easy way to access than countries with weak governance policies that must make major institutional and policy changes. So membership in the WTO can yield governance improvements. Though the new acceding members are bound to change the law with conformity with the multilateral trading system, it takes time for such changes to improve governance. Upon accession, a new member should follow the fundamental guidelines already followed by the others. The members are obliged to follow some specific WTO obligations, as good governance norms that influence the behavior of the member states and market actors. The multilateral trading system is an attempt by governments to make the business environment stable and predictable.
Governments also must accord due process of rights to market actors. GATT Article X:3(b) requires each party to maintain judicial, arbitral, or administrative tribunals or procedures for the purpose … of the prompt review and correction of administrative action relating to customs matters. These tribunals must be independent of administering agencies and allow importers to lodge appeals. Moreover, individuals with interests in investigations have a right to receive notice, to present written evidence, to review the public docket, to challenge decisions, and to seek judicial review (WTO Analytical Index: Guide to WTO Law and Practice). WTO takes and implements the decision in a very democratic and transparent way. Within the WTO, process and decision-making procedures have always been important elements of governance and often difficult to separate from the substance of the negotiation. Compared to the Bretton Woods Institutions (IMF and World Bank), WTO ensures a more balanced democratic process for its members. Membership in the IMF and World Bank is represented by a board, with each member giving voting rights proportionate to its contribution to the institutional budget. As a result, rich industrial countries hold the de jure driving seat in these institutions. On the other hand, the WTO Agreement stresses that all members have a right to representation in all of the WTO’s governing bodies, ranging from the Ministerial Conference on the General Council, as well as all other councils and committees. All decisions are taken by consensus on the basis of a “one government, one vote” principle (Agreement establishing the world trade organization). The legitimacy of the multilateral trading system depends both on internal legitimacy (full participation of all members) and external transparency (engagement of civil society in the member states). Indeed, if the rules are to legally bind all parties in a single undertaking, without the possibility of opting out of individual agreements, full participation and transparency become essential to enhance the sense of ownership of the substantive outcomes. So WTO, after establishment, proved itself as an effective multilateral organization which maintains good governance norms such as nondiscrimination, transparency, and due process. Members have got a chance to learn how to improve governance and adopt those norms to improve governance as they participate in the day-to-day working of the trading system. However, this learning process is gradual and uneven. Sometimes countries make significant progress in some areas, and the same countries may make less progress in others.
Due to the dramatic failure of the WTO’s 1999 Ministerial Conference in Seattle, WTO trade governance turned into a new chapter. Massive demonstration and dissatisfaction of certain groups with the state of globalization at the time of Seattle Conference influenced WTO to step forward to revisit the issues relating to non-trade areas. Protesters succeeded in drawing attention to their concerns about labor, environmental, and human rights issues. At the Doha Ministerial Conference in the fall of 2001, the WTO laid out an agenda for the “Doha Development Round,” which opens the door to a discussion of at least some of these non-trade issues, including environment, competition policy, and investment (“About the WTO: The Doha Round Texts and Related Documents,” 2009). The non-trade concerns at issue – sometimes referred to as “fair trade” issues – include regional economic integration; environment, investment, and competition policy; transparency in government procurement; trade facilitation; electronic commerce; and labor rights. The non-trade interests in these areas, however, are powerful and important enough that they must be given a voice if relevant trade rules are to be sustained. A refusal to grant such a voice will give strength to the already powerful forces aligned against the WTO and globalization (Guzman, August 2002). These developments have placed the WTO and the international economic community at a crossroad. The WTO must either move forward by incorporating more regulatory issues within its mandate or move backward and retreat to a narrower focus on trade, leaving controversial topics such as environmental and human rights issues outside of its influence.
Dispute Settlement and Governance
An effective consensus-based decision-making process could be achieved by increasing the transparency with which decisions are taken. Dispute settlement is the central pillar of the multilateral trading system to secure this transparency and make WTO an effective democratic organization for global economy and trade governance (Bossche and Zdouc 2013). The GATT rules relating to the settlement of a dispute were less elaborate and detailed compared to those under the World Trade Organization (WTO). The WTO dispute settlement procedure is premised on the assumption that all members are equal in their legal capacity to present their position in dispute settlement. The purpose of the WTO’s Understanding on Rules and Procedure Governing the Settlement of Disputes (DSU) is to provide for an efficient, dependable, and rule-oriented system to resolve disputes (a dispute arises when one country adopts a trade policy measure or takes some action that one or more fellow WTO members consider to be breaking the WTO agreements or to be a failure to live up to obligations. The third group of countries can declare that they have an interest in the case and enjoy some rights application of the Marrakesh Agreement Establishing the World Trade Organization (Hoekman and Mavroidis 2007). The dispute settlement body is equipped with a two-stage procedure, panel, and Appellate Body. The main functions of the panels are to find and analyze the facts and also determine the consistency of the measures in question with the rules of WTO Agreements. If the parties are dissatisfied with the findings of panels, they might appeal to the Appellate Body for a review of the panel reports. Appeals have to be based on points of law such as legal interpretation and they cannot reexamine existing evidence or examine new issues. An effective consensus-based decision-making process could be achieved by increasing the transparency and accountability with which the decision is taken. It is often said that consensus principle is at the heart of the WTO decision-making process and is a fundamental democratic guarantee that is not negotiable. For this reasons, each member undertakes to accord sympathetic consideration to and afford adequate opportunity for consultation regarding any representation made by another member concerning measures affecting the operation of any WTO agreement. Consultations have a number of functions. They allow parties to clarify the facts of the matter, thus dispelling misunderstandings as to the actual nature of the measure at issue. They may allow parties to find a mutually satisfactory solution and, if no solution is found at that stage, permit them to take stock of the issues which were not solved through consultations. Article 5 of the DSU provides for good offices, conciliation, and mediation to be undertaken voluntarily if the parties to the dispute agree. Good offices, conciliation, and mediation may begin at any time and be terminated at any time. If the parties so agree, these procedures may continue while the panel process proceeds. Panel and Appellate Body reports have to, where applicable, contain the recommendation that a measure which was found inconsistent with the WTO agreement be brought into conformity with that agreement (Understanding on Rules and Procedures Governing the Settlement of Disputes). But in recent years, WTO dispute settlement process encounters criticism for the secretiveness of the decision-making. As a result, most developing countries are reluctant to get relief from the WTO dispute settlement. To remove these types of deadlock situation, few steps should necessarily be implemented. In short, what is required is a system by which the state of play of any ongoing negotiation in any group is immediately communicated to all member countries for information sharing and ultimate decision-making. Better and improved trade governance is based on not only on the external transparency but also to the internal transparency of an organization. Today, the public from developed and developing countries would like to see the WTO to be more open and more accountable. In this regard, the WTO should consider limiting its restriction on its documents and most information should be accessed by the members. All of these efforts will make the public better informed about the WTO dispute settlement, WTO negotiations, and operations.
WTO, Trade Governance, and Development
The facilitation of economic development agenda because developing countries now account numerically for the larger part of the WTO membership. Though the preamble of the WTO Agreement (Agreement Establishing the World Trade Organization) includes the facilitation of development among its major objectives, the development issues were not getting the same spotlight while the WTO legal regime had started. Herein the parties to the Agreement refer to objectives relating to economic growth, expansion of the production of and trade in goods and services, and sustainable development; recognize the need for positive efforts to ensure that developing countries, especially least developed countries (LDCs); secure a share in the growth in international trade commensurates with their economic development needs; indicate their desire to contribute to these objectives by entering into trade liberalization agreements; and resolve “therefore to develop an integrated, more viable, and durable multilateral trading system.” Article XVIII of the GATT, “Government Assistant to Economic Development” is one of the primary provisions facilitating development in the GATT regime. Another set of the GATT provisions attempting to assist economic development is Part IV of the GATT (Article XXXVI–XXXVIII) entitled to trade and development. In 1964, the United Nations Conference on Trade and Development (UNCTAD) was established and rapidly became the main voice of the less-developing countries calling for reforms to the international trading and financial system. As part of its manifesto for New International Economic Order, UNCTAD called for the introduction by the developed countries of nonreciprocal tariff preferences for products exported by less-developing countries. In 1968, an agreement was reached on a scheme, the General System of Preferences (GSP), for granting such preferences. For decades, WTO tries to innovate such multilateral trade agreements which can meet the benchmark of equity, recognizing the differences that exist between WTO members – rich or poor, large or small. WTO also recognizes the need for more flexible options in favor of less-developing economies. However, it is reluctant to allow more time to open markets which would have been beneficial for less-developing economies. Nonreciprocal mechanisms have long been included in trade agreements embodied in the concept of “special and differential treatment.” A set of policy statements was made in the form of the GATT discipline on November 28, 1979 in favor of development and developing country members. This statement stated that “the developed countries do not expect reciprocity for commitments made by them in trade negotiation to reduce or remove tariff and other barriers to the trade of developing countries.” But the inadequacy of the development-oriented provisions in WTO disciples urges the policymaker to do more. So Special and Differential (S&D) treatment is given in Uruguay agreements to participate in international trade more easily. But the S&D treatments, as currently provided, are not sufficient to meet the economic development. Though the DOHA round took initiatives to diminish the gap by declaring the round as “development round” and declared S&D treatments for developing countries shall be an integral part of all elements of negotiations, the relaxation of current requirements in favor of developing countries could not server their needs. The protections are giving the impression to be “insufficient.” Many developing countries still have limited technical and human resources to comply with and to participate meaningfully in the many and often parallel negotiating circuits. So empowering these countries to have an effective voice in the work of the Organization remains part and parcel of governance. There are numerous ways in which WTO provides assistance to build trade capacity in developing countries. Among them, one of the main organizational efforts is to instruct developing countries’ delegates on how their countries can gain through the trading system. The main objects of these training are facilitated to them to understand the WTO process as they can implement WTO agreements in ways which will bolster their trading regimes and negotiate more effectively with their trading partners. In addition to technical assistance, WTO further gives assistance to improve developing countries’ infrastructure, i.e., efficient port and road network, providing customs official with automated equipment to cope with and to take advantage of the business opportunity in the global marketplace. WTO runs programs, particularly those involving infrastructure, in coordination with the international organizations and national government, because WTO’s functions are to achieve greater coherence in global economic policy-making and to cooperate, as appropriate, with the IMF and World Bank (WTO: building trade capacity). In the framework of the WTO, the developed members have also committed themselves to accord high priority to the reduction and elimination of barriers to products currently or potentially of particular export interest to developing countries, including customs duties and other restrictions which differentiate unreasonably between such products in their primary and in their processed forms. On the other hand, the only target of developing countries is not only applying the trade restrictions to protect their domestic markets but also being able to exploit the export opportunities that open up for them and also to defend their acquired rights and interests and to formulate development-oriented trade policies. There is a problem relating to the systematic absence of many developing countries (particularly those that are small) from both informal and formal meetings in the WTO. Most small delegations from developing countries do not have the appropriate resources either in Geneva (Secretariat at WTO) or at home to service the increasingly frequent, complex, and resource-intensive negotiation process at the WTO. Full participation can come about only with a strengthening of their human and institutional capacities. As many of them do not have the resources or expertise to build this capacity themselves, they have to turn to technical assistance programs offered by others. There is a pressing need for a considerable increase in the inadequate resources currently available to them through the regular WTO channels (Sampson 2001).
The multilateral trading system, with the World Trade Organization (WTO) at its center, is the most important tool of global economic management and development. The WTO has extended its reach far beyond that of GATT, the rules and applications are advanced more than before, and its importance in international economic and political affairs has increased dramatically. It is believed that the global trade governance could be partially and effectively filled by none but the WTO by taking on more initiatives and responsibilities. Besides considering only the trade-related issues, WTO should take more responsibility to build a strong multilateral rule-based system based on effective reciprocity, corrective equity, transparency, and accountability. The trading system cannot act in isolation when there exists a wide variety of issues including to preserve and protect the environment, access to essential medicine, and respect of core labor standards and human rights that belong on the international agenda and that are directly affected by trade itself or the rules that govern it. So WTO should remake or revisit its rules essential to develop a system of governance in the global market. WTO also gives potential concentration on implementing the development goals and social issues, i.e., a substantial increase in development assistance, including the strengthening of trading capacities and acceptance of the need for special and differential treatment to allow developing countries increased flexibility, including taking tariff-freezing, tariff-raising, or import-limiting measures when necessary, fully in future trade-liberalizing negotiations. Changes also require WTO decision-making procedures which not only address developing country grievances but enhance the organization’s ability to conduct business efficiency. Another initiative that should be taken by its member states to strengthening the WTO in global governance is to increase its own institutional capacity by increasing its budgets and the size of the staffs. Moreover, weak or the lack of other international organizations responsibility for global trade governance, overlapping and ill-defined mandates, inadequate organizational cooperation, and the absence of a mechanism for deciding who does what are the global governance problems that are burdening the WTO and undermining the effectiveness as an important multilateral institution and policy initiative. If all these challenges that face the organization are to be understood and fully addressed, the WTO’s place in the larger system of global economic governance will have to be considered.
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