This is a guest post from law professor Bashar Malkawi:
Throughout much of GATT and then WTO history, consensus has been the norm. For example, article XXV (3) and (4) call for one vote per nation and decisions to be taken by majority vote, but in practice consensus was developed among parties. Panel reports may be appealed to the Appellate Body for review of legal issues. Establishment of panels and the Appellate Body and adoption of their decisions are to be achieved through inverted consensus. In other words, panel decisions are adopted unless all WTO members present at the meeting of the DSB decide by consensus not to adopt panel decisions. To join the WTO, a working party needs to be established to negotiate terms of accession, and the General Council, which operates by consensus, must agree to form the working party. These are a few examples where consensus by GATT/WTO members is needed.
On June 17, 2022, WTO members secured several agreements and initiatives. These include the Ministerial Declaration on the Emergency Response to Food Insecurity, Ministerial Decision on the Agreement on Trade-related Aspects of Intellectual Property Rights, Decision on the E-commerce Moratorium and Work Program, and an Agreement on Fisheries Subsidies. The recent ministerial conference produced what on the surface seemed to be progress, but by examining the details many of the key issues have been left for later negotiations (as with fisheries), negotiations which are not likely to be concluded in the five years specified or perhaps much longer. Nor was there any meaningful progress on WTO reform, which is crucial if the WTO is to remain relevant.
But why is consensus important? When decisions are made, it makes sense to follow the majority. The general will of the public ought to govern. Consensus decisions are better and fairer decisions. These types of decisions take into account a broader range of relevant perspectives, and they would be fairer because they would reflect the views of different countries.
Consensus ensures that we have a fair number of WTO members who participate in the decision-making process, and decisions and agreements are reached after careful discussions. The benefits of collective, consensus decision-making process after careful discussions are appreciated by democracy theory. When countries get together for a thoughtful exchange of ideas, they become more informed of the strengths and weaknesses of the opinions of others. As a result, WTO members make better decisions. WTO members benefit when legal rules reflect the perspectives of all sides of the argument as neither side has a monopoly on the truth. Better that the WTO bases its decisions and agreements on the understandings of all of the members rather than on views that are particular to only some countries.
Any type of voting not based on consensus allows for decisions to be based on a narrower rather than broader range of perspectives, and thereby will reduce the quality of agreements. For example, Article IX of the Marrakesh Agreement requires super-majority voting whereby three-fourths of WTO members need to agree to adopt an interpretation of WTO agreement. In practice, though, departures from consensus are seldom. Any system of voting, other than consensus, would divide the membership into several warring camps.
When WTO members decide on the basis of consensus, the majority gives greater consideration to minority viewpoints. Those in the minority participate more in the discussions, and their perspectives play a greater role in shaping WTO decisions and agreements, though this means more time as negotiations last longer and painstaking process. Agreements are best accomplished when based on a broad range of perspectives rather than the perspectives of one side of the aisle. Agreements that are representative of the full WTO membership have another important virtue. Such agreements have greater legitimacy.
Game theory provides reassurance that countries would choose cooperation over conflict. When countries work with a group of peers on a frequent basis to decide matters, they realize that they are better off developing collegial rather than oppositional relationships. The institutionalized policy of consensus decisions would permit WTO membership to speak with a unified voice. Consensus agreements do not create as great a need for change over time.
However, understandably, there are problems with consensus. A few recalcitrant members can block any progress for long periods. WTO members who are in favor of majority decision-making think of efficiency. It is easier to assemble a majority than a consensus. A requirement of consensus would result in too much gridlock and not enough agreements or decisions. The WTO Appellate Body could step in in this case and decide cases in light of this vacuum, as the argument goes.
Should we prefer a majority over consensus? One would think yes although it is by no means is certain. Going forward, the WTO should reflect the majority of its members or like-minded countries. WTO members should be willing to go to extraordinary lengths to modify their consensus style of negotiations and agreements to another system i.e. majority. The potential for a slow WTO process creates a sufficient basis for changing the requirement and practice of consensus. Decision-makers adjust their behavior to their decision-making rules. When majority is required, WTO members will look for positions that can generate the majority. Consensus runs the danger of making the WTO increasingly irrelevant. It is time to change course and adopt a majority system.
