2. Alternative fora for developing rules clarifying the WTO & MEA relationship
he WTO’s DDA round can be considered as the first institutional attempt to provide a political space for clarifying the WTO/MEA relationship. This chapter focuses on the identification of possible alternative fora to the WTO for developing and/or codifying principles of public international law that support a legally predictable approach to the settlement of disputes between MEAs and the WTO. The paper identifies four options:
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• the International Court of Justice, • the International Law Commission, • the International Court of Environmental Arbitration and Conciliation, and • Independent Group of Interested Governments.
2.1 The status quo: WTO negotiations Bearing in mind the set of qualitative criteria chosen for assessing the desirability of an alternative debating forum for the WTO/MEA relationship it is clear that the only strength offered by the WTO negotiations lies in the WTO’s institutional ability to factually determine trade relations and develop international trade law as a result of its quasi-mandatory dispute settlement mechanism. However, when assessed against all other criteria, the WTO scores very low. The WTO was set up as a separate organization, outside of the United Nations. It is thus not accountable to the UN General Assembly and it does not always follow UN rules for democratic decision-making in which all countries participate in the negotiations and final decision-making on basis of a onecountry one-vote system. On the contrary, it has become WTO practice to organize negotiating sessions that involve only the most powerful countries, through so-called mini-ministerials and green room sessions The agreements reached at such sessions are subsequently dropped upon other members on a “take it or leave it” approach. The negotiating process within the WTO is highly intransparent, at times even secretive. The general public has no access to the proceedings, nor is it allowed to formally provide input into the negotiations. Public symposia and accreditation at Ministerial Conferences can allow third parties, such as NGOs, to bring relevant information to the attention of the WTO secretariat and WTO members – but these inputs are usually ignored.
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