After Trump, multilateralism is supposedly back. According to US Secretary of State Antony Blinken, it is "still our best tool for tackling big global challenges." In the case of trade, of course, multilateralism means, primarily the WTO. The Organization's approach to decisionmaking-"consensus"-allows a single holdout state to block progress, or indeed, as Claerwen O'Hara notes in a must-read new article, it can paralyze the existing institutional functions of the WTO-the example of the US blocking new Appellate Body appointments. Even in the case of the Appellate Body, despite the tempation of some Members to do so and the proposals of some academic commentators, there was little appetite for invoking the formal decisionmaking rules of the WTO, which permit on most matters decisions to be taken by majority or supermajority approval. Pascal Lamy (prior to becoming WTO DG) criticized the WTO's decisionmaking procedures as "medieval." However easy it is to laud consensus decisionmaking as respectful of sovereign equality of states, or an embodiment of the principle of pure democracy, the fact remains that the framers of GATT devised voting rules and made them legally effective; indeed, while with the creation of the WTO consensus practice was codified, it still coexisted in tandem with re-affirmed voting rules, which could be resorted to if consensus failed. The gap between positive law and pervasive practice requires some explanation. This is where O'Hara's work if especially valuable.
By the 1950s, she suggests, consensus operated as a substitute for weighted voting: " The 'sense of the meeting' or 'consensus' procedure can have a weighted effect on decision-making because, in the absence of formal voting rules, powerful states have more opportunity to use their market size and/or geopolitcal power to influence the decision-making process." It is the consensus practice that in fact underpins institutions such as the notorious Green Room, which allow compromises to be forged that then smaller, less powerful states can be pressured to accept. As O'Hara observes, "By the 1960s, the Contracting Parties had dispensed with voting entirely for all decisions other than those relating to waivers or accession." When the global North, in the wake of decolonization, now found itself in the numerical minority in multilateral institutions there was a push for consensus decision-making in a variety of fora, including UNCTAD. Challenging the status quo in international trade relations reflected in the GATT were the elements of the New International Economic Order that had been enacted in UN institutions by majority vote. Rather than seeking to transform the GATT through reanimating the voting rules, developing countries accepted concessions to the NIEO in the form of "special and differential treatment" and tariff preferences.
But, as O'Hara notes, in the Uruguay Round, "the Southern states felt the full weighted natue of consensus decision-making come down upon them." As she puts it, "When states like India and Brazil formed coalitions to resist their proposals, the US and other Northern states broke them up, buying some off with 'carrots and sticks' and isolating others. [Footnote omitted] As Cold War tensions thawed, states in the North also bcame less heistant about resorting to an 'overt use of power' [footnote omitted] to achieve their trade policy objectives."
Post-Uruguay Round, the South has seemingly found ways of using the WTO procedure to resist the North when it is the demandeur-hence, the failure of Seattle and Cancun Ministerials, and ultimately the abandonment of the Doha Round. The plurlilateral negotiations that have emerged now, on matters such as investment facilitation, E-Commerce, and trade in services (TISA), cannot disguise the fact that the South will not accept to be pressured into a consensus based on the demands of the global North-and most of these demands have been, in one way or another, in the direction of more neoliberalism, more 'deep integration' that constrains policy space and experimentation for development in order to achieve the market access goals of the developed countries, above all. O'Hara notes: "'emerging powers' such as China and India...have each accquired the economic clout to use the consensus procedure as a 'veto' power."
I would add that it is this last reality that makes the TRIPs Waiver such a heartwrenching dilemma. Given the global COVID emergency, there would be a natural case for reactivating the voting rules to overcome holdouts such as the European Union, the UK, and Switzerland, perhaps even justified as an emergency exception, a last resort. But after suffering defeat in the Uruguay Round, developing nations, at least the most powerful among them, have now finally mobilized the consensus practice as a shield against the neoliberal efforts of WTO "reformers" from the North. Hazarding an experiment with voting is hardly-risk free.
Here, a recent book by the well-known WTO scholar Amrita Narlikar may be helpful. Narlikar explores the ways in which decisionmaking procedures and power relations in and around the WTO have led to wins, as well as losses, for Southern interests. Her important work will be the subject of my next blog post on this theme.
