SUNS  4344 Monday 14 December 1998



WTO TO TRY AGAIN ON 18 DEC ON DG SELECTION

Geneva, 11 Dec (Chakravarthi Raghavan) -- The Members of the World Trade Organization will make another try on 18 December at naming a Director-General to succeed present incumbent Renato Ruggiero, but the chances of their doing so, in the face of two major trading partners
not indicating any way their own preferences, appears slim.

The Council is expected to 'suspend' itself at the end of its agenda on Friday, so that it could be summoned to meet next week, without the usual 10-day notice, before adjourning for the holiday season.

An informal meeting of the Council is also set for 14 December.

If by then, the EC members at their summit in Vienna, are able to reach a consensus on their choice, it will put the heat the US, but that may not be enough to force it to choose or acquiesce.

In a report to the General Council Thursday, Ambassadors Celso Lafer of Brazil and William Rossier of Switzerland, named to conduct the consultations over the four candidates running for the post, told the General Council in a report that despite the intensive nature of the consultations, no consensus has emerged, and it would not be possible to complete by the end of the year, as envisaged by the Council in July, to confirm the appointment of a Director-General.

They also said that while reaching a consensus was a difficult process, it was even more so when some important members have not been able to indicate their choice or preferences -- a clear reference to the European Union and the United States.

For the European Communities, Roderick Abbot, conceded that the EU members have been unable to reach a consensus on a candidate, that they were striving to reach a decision, and hoped to do so soon.

After a prolonged discussion, and interventions and comments from the members, and calls from Egypt and Pakistan for a vote to resolve the issue and insistence by many others on sticking by the "consensus" approach, the Council has 'suspended' consideration of the issue, and will return to it again on 18 December.

The WTO spokesman, Keith Rockwell in briefing the media Thursday, said the discussions reflected a high degree of frustration from the members, but it was a high level debate -- perhaps taking a cue from the words apparently used at the end by the US Ambassador, Rita Hayes.

Egypt's Amb. Mounir Zahran and Pakistan's Amb. Munir Akram, as at the informal heads of delegations meeting last, said that while consensus was a desirable way of taking a decision, if a consensus could not be reached, they should resolve the issue by taking a vote as envisaged by
Art. IX of the WTO agreement.

Akram in addition said that even if they did not take a vote now and the search for a consensus continues, it should be decided that if no consensus could be reached by the time the General Council met in 1999  (the tentative date set is 20 February), the choice would be made by
recourse to a vote.

Zahran and Akram, as also several others including Australia, also pressed that Lafer and Rossier should indicate, for the sake of transparency, about the levels of support for each of the four
candidates -- Morocco's Hassan Abouyoub, New Zealand's Michael Moore, Canada's Roy Maclaren and Thailand's Supachai Panitchpakdi -- so that those with least support could withdraw or be persuaded to withdraw.

During the consultations in 1995, for the selection of a candidate to succeed Peter Sutherland - conducted at that time by the WTO General Council Chairman Amb. Kesavapani and GATT Contracting Parties Chairman, Amb. Zahran - towards the end an informal poll was conducted and the support for Ruggiero was announced, whereupon he was formally named by consensus.

But speaking towards the end of the discussions, Mrs. Hayes countered the argument for a vote under Art. IX of the WTO, by suggesting that the relevant article to be followed was Art. XVI which says that "except as otherwise provided" under the Agreement or the Multilateral trade Agreements, the WTO shall be guided by the decisions, procedures and customary practices of the GATT 1947.

But the WTO spokesman who relayed this to the media, did not say what the reaction of others, including Zahran or Akram were.
However, the normal interpretations enjoined by the WTO, namely, the Vienna Law of Treaties and public law interpretation require that words be given the ordinary meaning, would make it difficult for such a "high level" debate, as described by Hayes, to agree with her conclusion.

For, Art. IX deals specifically with "decision-making" issue and provides for continuance of the practice of decision-making by consensus under GATT 1947, and then says if a decision cannot be
arrived at by consensus, the issue shall be decided by a vote, though qualifying this with the words at the beginning of the sentence "Except as otherwise provided". Any normal treaty interpreter would have had to fall back on other specific provisions in that article itself for the 'exception'. And a footnote to that article also makes clear that for the WTO "consensus" is deemed if a member present at the meeting does not formally object to the decision.

However, the issue is political rather than legal, and clearly even those pressing for a vote, and pressuring Lafer and Rossier to give some indications of the levels of support for each of the candidates, were doing so to put pressure on the US and EC to make up their minds and convey their views, instead of holding up the process, by saying their authorities had been unable as yet to reach a decision.

Most of the delegations expressed their frustrations, asked the two majors to make up their minds quickly, but professed their attachment to the GATT practice of consensus.

As some trade officials put it, the 15 EU members are divided in their support for three candidates, but can't make up their minds on one by consensus. The US officially has no candidate, but its various authorities (State Department, Trade Representative's Office, the Congress and the White House - if the latter two can find time from political preoccupations of Clinton's impeachment) can't agree on one of the four.

The rest of the WTO members can't resolve the issue by forcing the two majors either to agree on a choice made by others, or stand up formally to object. And overall, the trade organization and its diplomats have no time to focus on the economic crisis and the substance.