Responsible Consensus? “You cannot be serious!”

Reflections from a ‘non trade-law’ specialist listening to discussions at the recent World Trade Organisation (WTO) Public Forum

For some time, the WTO has struggled to conclude negotiations across a range of big issues – be this on agriculture, fisheries, e-commerce, or investment for development. Some of these issues date to the launch of the Doha Development Round negotiations in 2001 if not further, and others arise from more recent challenges. In recent cycles, each time there is a WTO ministerial conference there is much commentary and speculation as to whether the meeting will end up in ‘failure’ or not – and so far, the WTO has scraped by.

The underlying rule in the WTO is that agreements require consensus, and consensus has typically meant unanimity. There are now 166 members of the WTO and any one of them can effectively veto an agreement. If one member dissents then, by definition, there is no unanimity, and no finalised agreement. From a formal, legal perspective voting is possible – but in practice never invoked. It is a core, and importantly, a unifying feature of the WTO for all to agree. It is seen, and rightly so, as an important means of trying to ensure that the interests of the smaller members are protected. In practice, of course, pressure can be brought to bear on smaller members in various ways. Nevertheless, consensus does provide some backstop.

However, there has been growing frustration with the lack of agreement in key areas and, with what some perceive as the consistent and repeated blocking actions of a very small number of countries, perceived as the ‘awkward squad’. In the face of this, since the Abu Dhabi ministerial, there has been increasing discussion about making progress by applying the principle of ‘responsible consensus’. It is important to underline that the proposal does not entail any change in the legal frameworks underpinning the WTO, but a change in ‘mindset’ with the aim of encouraging countries to behave more constructively and, in so doing, strengthen the WTO.

As articulated by Petter Ølberg, the Chair of the WTO General Council, in our recent podcast, (responsible) consensus is not quite the same as unanimity. The idea is that member countries act in good faith not to scupper agreements, even if they are not entirely comfortable with all the elements of that agreement. Essentially, acting responsibly would mean being more flexible by not vetoing a given agreement. It does not mean introducing voting but it does mean providing an explanation and justification when choosing to veto a given agreement.

That of course raises the very tricky question of under what circumstances should countries behave ‘responsibly’. The answer seems to be some combination of:

• really important issues – of course noting that this is hard to define;
• where there is a clear and substantial majority of members that wish to proceed (the example often given is the Investment Facilitation for Development Agreement, which over 120 WTO members have agreed to)
• where failure to agree may have systemic implications for the future of the WTO – again noting this is hard to pin down.
• on issues that do not negatively impact the dissenting country itself.

There is much that is attractive about the proposal. It seems reasonable to ask members to behave in good faith and to behave responsibly. The proposal is also somewhat analogous to the ‘minus-X’ principle used by the Association of Southeast Asian Nations (ASEAN) group of countries, which allows for two or more countries to pursue an agreed (services) liberalisation even if the remaining countries do not agree, and where there is no requirement to offer the same concession to the others, though they can subsequently join if they wish to.

However, the proposal is not unproblematic. The positive language of responsible consensus, acting constructively, and acting in good faith has its flip side. Those that veto any given agreement are thus, almost by definition, ‘irresponsible’, ‘unconstructive’, and acting in ‘bad faith’; as opposed to (as no doubt those who oppose this proposal would argue) acting in the best interests of both themselves and also of the WTO as a whole.

Acting in the best interests of the WTO here has two possible elements here. First, there will be arguments with regard to the desirability of any given agreement – are the proposals regarding fisheries, investment or e-commerce good for the WTO and its members? Second, and more fundamentally, there is serious concern that the principle of responsible consensus undermines the unanimity principle, and the right to veto, which is so fundamental to the WTO and, crucially, which protects the interest of each member state no matter their size or influence.

Another potential worry is that responsible consensus will be used, or could be used, to name and shame. The proponents of responsible consensus have made it very clear that this is not the intention. However, in practice, there clearly is a danger of a blame game. Now, of course, to a good degree that already happens. It is well known already which members opposed / blocked which agreement and this is openly discussed. However, the difference here is that if the principle of responsible consensus is accepted by WTO members, the blame game becomes legitimised within the WTO itself.

Perhaps not surprisingly, therefore, there is fierce opposition from some to the principle of responsible consensus (hence: ‘you cannot be serious’). My take on this difficult issue is that while we should not shirk from calling countries out, formalising, in some way, the use of normative language, such as ‘responsible’ consensus, is indeed inherently problematic. As an observer and non-legal specialist, I find it hard to see that responsible consensus will indeed break current logjams.

So, what are the alternatives? There are pressing needs on policy areas that need addressing, and for some of these there are substantial coalitions of countries that want to proceed. In the face of repeated blocking stances (investment facilitation, e-commerce), one way members could side-step these would be by getting deals adopted plurilaterally.1  There are two types of plurilateral agreements – those where the concessions only apply to the participating members, and those where the concessions apply to all members, even to those who are not party to the agreement, and hence have not offered concession in return, and where the agreement does not create any obligations for the non-participants. However, plurilateral agreements still need consensus in order to be adopted in the WTO rulebook, hence they are not a straightforward option. The alternative would be to agree plurilaterals outside of the WTO. In the face of continued blocking by some members, where else is there to go?

Footnote

1. For an excellent explainer and discussion see: https://tradebetablog.wordpress.com/technical-types-of-plurilateral-adding-to-wto/