PRESERVING THE CURRENT PRACTICE OF CONSENSUS-BASED DECISION-MAKING
IN THE WTO

COMMUNICATION FROM SAMOA ON BEHALF OF THE AFRICAN, CARIBBEAN AND PACIFIC GROUP

The following communication, dated 7 May 2024, is being circulated at the request of the delegation of Samoa on behalf of the African, Caribbean and Pacific (ACP) Group.

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1  INTRODUCTION

1.1.  Article IX, paragraph 1 of the Marrakesh Agreement establishing the World Trade Organization (WTO) states that "The WTO shall continue the practice of decision-making by consensus followed under GATT 1947.^[1] Except as otherwise provided, where a decision cannot be arrived at by consensus, the matter at issue shall be decided by voting. At meetings of the Ministerial Conference and the General Council, each Member of the WTO shall have one vote."

1.2.  The principle of consensus-based decision making represents a tradition that goes back three-quarters of a century in the multilateral trading system and thus can be seen as part of not only treaty law, but also customary international law as verified by constant practice. Among international organizations, the WTO stands out as one of the few that allows each of its Members, irrespective of its size or level of development, the wherewithal to secure certain outcomes in its interests through consensus-based decision-making. By comparison, other key international organizations rely on power dynamics or other approaches such as quota-based systems as the basis for decision-making.

1.3.  Importantly, the Marrakesh Agreement does not qualify consensus with terms such as "responsible", "constructive" or "flexible". Therefore, it does appear that the letter, spirit and intent of the Marrakesh Agreement provide for an approach to consensus-based decision-making which is unqualified.

2  WHY SHOULD THE WTO PRESERVE CONSENSUS-BASED DECISION-MAKING?

2.1.  The current consensus system is a representation equity in the WTO. Essentially, the consensus system sends an important message that all Members are equal and as such, each Member must have a stake in securing outcomes which are favourable. Especially for the smallest, poorest and most vulnerable Members of the WTO, consensus-based decision-making protects them from the vagaries of power dynamics.

3  CONCLUSION

3.1.  The ACP Group has systemic concerns regarding any attempt to alter the status-quo with respect to the consensus system in WTO decision-making. Therefore, the Group strongly objects to the introduction of any qualification or modification which departs from existing treaty rights under the Marrakesh Agreement.

3.2.  The consensus principle goes to the heart of the WTO system and it provides a fundamental guarantee which is a non-negotiable for the ACP. In essence, the current and long-standing practice of decision-making by consensus gives all Members an equal say in the WTO which is not based on political power or level of development.

3.3.  Rather than seeking to alter Members' existing rights with respect to consensus-based decision making, it would be more beneficial for the entire membership to focus on trust-building activities. Where trust exists and is reciprocated - where there is confidence in institutions and systems – all Members will achieve more. To alter the status quo would be to undermine trust and ultimately achieve less.

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