Will Maude Barlow be allowed to appear before WTO panels to critique globalization? Rating: NNNNN
Ottawa -- less than a month be-fore Canada hosts the finance ministers of the richest nations in the world, there's turmoil in trade land. No -- it's not Paul Martin's no-show that's spooking everybody, but rather the legal apparatus that's supposed to keep the international economic order humming along.Here at the annual conference of the international section of the Canadian Bar Association, at the Marriott Hotel, a range of complaints are on offer about the mechanisms for resolving trade disputes. Sounding shockingly in tune with the complaints of street protestors, these blue suits say the present closed-door way of operating has impaired the political legitimacy of global trade tribunals to the point where it's affecting their ability to carry on business.
Activists will be surprised to learn that the legal eagles monitoring globalization think the solution is to invite NGOs to join the deliberations. But before anti-glob militants start washing their cotton pants and hoodies for the next WTO meeting, a word of caution: the reason behind the welcome mat is the "C" word -- co-opt.
"As governments implement the decisions (of trade bodies), if the domestic political body doesn't believe they were reached validly or with sufficient participation, then they can't implement without severe political consequences,' says Robert Novick, one of Bill Clinton's free trade negotiators. "I think it's inevitable that NGOs are given more of a participatory role. There would then be more validity attached to the system.'
But it's not just the problem of transparency that is foiling international bodies from the WTO and International Court of Justice (which settles non-trade spats between nations) to the Law of the Sea tribunals for maritime disputes and numerous others.
According to these lawyers, the judging on all these panels and tribunals leaves a lot to be desired. "There's lots of dead weight on the ICJ who would rather spend time with their mistresses in Paris,' sniffs Robert Volterra, a Canadian practising in the UK.
The slag of WTO panels is that four out of five of them are from developing countries and deliver politicized judgments that all too often must be taken to a more competent but overworked appeal court. Many panels, says Debra Steger, who until last year was director of the WTO appellate body, "are not legally trained and are assisted by people who have been in their jobs only two or three years.'
Lawyers being lawyers, many here want a more judicialized system on trade tribunals. They'd like to see decisions based on precedent rather than on sympathies in the economic tug of war behind the countries of the North and South. But there's no consensus on this. Novick says governments will never agree "to a pure judicial system.' He calls the current system "elastic,' because it can be stretched across the gap between the politically and legally acceptable.
Elastic systems can snap if too much pressure is put on them, which is why one Canadian official argues here that giving the WTO the job of enforcing labour standards would bring the whole system crashing down. "You cannot plug in social policy such as labour and make them work,' says John McKennirey, director general of strategic policy and international affairs at the federal human resources department in Ottawa.
The problem, McKennirey says, is that labour standards vary dramatically from country to country, and the norms of one country may not mesh with those of another.
But this doesn't wash with Toronto lawyer Mary Cornish, a participant here who has worked for Canadian unions in the maquiladoras of Mexico. She points out that there's already a set of globally recognized labour standards under the auspices of the International Labour Organization. It's just that there's no way to enforce what's on paper.
Demands for the enforcement of labour standards will continue to bog down the international trading regime, as even McKennirey acknowledges. "This demand (to have labour standards included in trade agreements) is probably not going to go away until we find an alternative set of procedures perceived to be reasonable, effective and accessible,' he says, referring to the establishment of a parallel labour tribunal.
As with so many issues facing the global trading order, the claim that trade agreements can't incorporate labour standards comes down to credibility. Will unions and their public supporters believe that? With an eye to boosting the standing of the global trading infrastructure, many voices here are saying NGOs should be allowed to appear before panels.
Calls for NGO involvement come from the most conservative quarters here, including Yves Fortier, who served at the UN in the late 80s after being appointed by Brian Mulroney, with whom he now practises at Ogilvy Renault in Montreal. According to Fortier's conference paper, The Emerging Importance Of Non-State Actors In International Law, these actors include environmental and social groups, business and professional organizations, churches and large multinationals.
How is it decided who sits at the table? I ask Fortier after his talk. Just as it's done in domestic courts, he replies. The presiding judge decides who has a legitimate interest in a case and who should be granted standing. Does that mean Maude Barlow should be allowed to appear before WTO panels to offer her critique of globalization? I wonder. "Don't turn off your set,' he says with a wan smile.
A skeptical Volterra, the Canadian practising in London, sees groups participating without a clear role. "Are non-state actors challenging the system? Or are they being co-opted into the system?' To which Howard Mann, law adviser to the International Institute for Sustainable Development, says calmly, "I don't mind being co-opted if it advances the agenda.'
As with all voyages into uncharted waters, this one by NGOs into the stormy seas of international trade entails its share of danger, not the least of which is that they will lend credibility to the forces of globalization while losing their own. But NGOs have more often than not outwitted the forces of free trade in the past. Why should this time be any different?