Legitimacy, transparency, and information technology: the World Trade Organization in an era of contentious trade politics.

Smythe, Elizabeth ; Smith, Peter J.

The legitimacy of international trade rule making and the World Trade Organization (WTO) have been subjects of increasing debate. Nongovernmental organizations, in particular, have criticized the lack of democratic accountability and thus the legitimacy of trade policymaking. This effort has included the development of transnational campaigns and networks, facilitated by information and communications technologies, to shed light on the trade rule-making process. At the same time, transparency has become the minimal standard for accountability in both the public and private sector. We review the WTO's modest improvements in external transparency in response to these pressures. Drawing on the experiences of a number of WTO members that have responded to critics of their trade policymaking processes by a limited increase in transparency, we conclude that similar efforts at the WTO will be an insufficient response to critics and fall short of what is needed to seriously address legitimacy questions. KEYWORDS: World Trade Organization, legitimacy, transparency, information technology, trade policy.

**********

The collapse of the fifth ministerial meeting of the World Trade Organization (WTO) in September 2003 in Cancun, Mexico, amid mutual recriminations of negotiators, street protests, and complaints about the negotiating process has raised questions once again about the organization and its role in global governance. Even prior to Cancun, some scholars had argued that the WTO had a legitimacy crisis and a "democratic deficit." This concern, however, reflects broader questions about the process of governance at the global level.

As globalized systems of production and exchange have brought increased interdependence and mutual sensitivity of national economies, states have been forced to act increasingly in concert with each other to collectively steer or govern their societies. Unable individually to solve many of the problems confronting them, states have collectively developed rules for regulating the global economy by acting through international economic institutions. Thus, governing is no longer confined to the structures and processes of government as states have become embedded in broader networks of power and authority involving public and private actors at all levels--local, national, and global.

Initially the postwar rules and international institutions were viewed by many scholars as facilitating economic exchange while allowing for national autonomy and an expansion of the role of the state in the postwar period. (1) However, with the proliferation of institutions and the development of rules that penetrate much more deeply into national systems, states, as Michael Zurn (2) and others have argued, have lost that large degree of autonomy. This loss of autonomy raises questions of the accountability and legitimacy of national governments. Moreover, it is not compensated for by an increase in democratic legitimacy at either the supranational or international levels. (3) Thus, global governance exacerbates the problem of legitimacy at all levels as both states and international institutions (such as the WTO) face dilemmas of legitimacy and transparency.

As its agenda penetrates more deeply into areas of traditional national regulation, the WTO confronts the problem of being both too remote and too intrusive (4) in the lives of citizens. The WTO has increasingly recognized the imperatives of strengthening its underlying basis of legitimacy and improving its transparency and openness, both externally to new voices and internally to its constituent state members. In part, the recognition of the need for transparency is linked to the issue of legitimacy. That is, there is growing awareness in the WTO that greater transparency, openness, consultation, and accountability may not only deflect criticism, but also potentially provide an independent source of legitimacy, derived not just from states, but directly from citizens. However, greater external transparency and openness pose their own dilemmas and, as we will indicate, are unlikely to be adequate to address legitimacy questions. Any serious solution would also entail addressing the pressing questions of power asymmetries among WTO members, reflected in the lack of internal transparency and informal decisionmaking processes that marginalize a majority of the WTO's members.

This article examines the debate about legitimacy and the WTO, focusing on questions of transparency and the relationship of the WTO to nongovernmental organizations (NGOs). The first section examines the concept of legitimacy, its relationship to transparency, and the issues of internal and external transparency. The second section addresses the role of information and communication technologies (ICTs) in facilitating the creation of NGO networks and increasing the speed and flow of information regarding trade policy and the WTO. Information clearly plays a critical role in ensuring accountability and, ultimately, in attaining legitimacy.

The third section examines how NGOs have used ICTs to shed light on trade policymaking both nationally and at the WTO itself. In response, as the fourth section outlines, the WTO has made efforts to increase its external transparency, at the same time that WTO members have been grappling with issues of internal transparency. The pressure to increase external WTO transparency, we argue, also reflects changes in trade policymaking in a number of WTO member countries. These changes are outlined in the fifth section, and the experiences of these WTO members in enhancing the transparency of their domestic trade policy processes provide, we argue, a cautionary tale about the limits of transparency as an answer to legitimacy questions. This leads to our conclusion that the transparency efforts at the WTO to date are not likely be sufficient to co-opt or disarm critics of the WTO and, more important, fall far short of what would be needed to seriously address legitimacy questions.

Legitimacy and Transparency

A number of analysts agree that the WTO has a legitimacy problem. (5) Legitimacy is generally defined as a degree of acceptance or consensus around rules or norms in a society. Krajewski defines it as follows:</p> <pre> A norm can be called legitimate in any political or societal system if it is based on fundamental principles or values adhered to by the subjects of that system. These principles can either define certain procedural conditions of the law-making process (input legitimacy) or material conditions measuring the results of the norm (output legitimacy). (6) </pre> <p>In democratic political systems, input legitimacy is normally tied to the procedures by which laws are made and the ability of citizens to hold governments accountable for the decisions it makes on their behalf and with their consent. Two means by which citizens hold governments accountable are, first, the formality and clarity of the decisionmaking process and, second, the public's right to information about that decision and how it has been made--that is, transparency. Output legitimacy, however, deals with the likelihood of acceptance of the decision based more on its impact or results and its effectiveness in advancing or attaining community values.

Beyond the borders of the nation-state and defined political communities, the issue of legitimacy becomes more complex, although legitimacy remains tied to the state. In the case of international governmental organizations (IGOs), much like international treaties, the argument is that the organization's legitimacy is derived from its sovereign member states that make the decisions or sign the treaties. Executives of sovereign state members direct officials who negotiate or, as state representatives, make decisions in the key bodies of the WTO, such as the General Council. In turn, the national political executive is accountable to its own citizens either directly, via election, or indirectly, via a body of elected representatives--normally an elected national legislature--that ratifies treaties or expresses confidence in the decisions of the executive. (7)

Traditionally, the General Agreement on Tariffs and Trade (GATT) and the WTO (which succeeded it in 1995) have operated outside public scrutiny. Confidentiality was justified as necessary to, and facilitating, interstate bargaining and negotiating (the key activity of GATT). Moreover states had a firm grip on this "member-driven organization," and so they, not the secretariat, were accountable for decisions made. The WTO's opaque negotiating process was justified as well as the only way conflicting narrow (and often protectionist) domestic interests could be traded off, outside the scrutiny of domestic publics, to reach agreements that would liberalize trade, open markets, and enhance national and, ultimately, global prosperity. Ann Florini outlines the argument as follows: "Pushing reform through the political system, therefore, requires that government officials be insulated from parochial, selfish interests. Bypassing citizens groups takes politics out of the process and leads to deeper and more comprehensive reform." (8)

This process, it was claimed, accounted for the successful lowering of barriers and expansion of trade in the postwar period. In recent years, however, the persuasive power of both the input and output legitimacy narratives has been eroding.

With the successful removal of barriers to cross-border movements of goods has come a widening scope of trade rules and agendas that reach much more deeply into domestic regulatory practices. (9) This has been accompanied by more effective and binding dispute resolution processes at the WTO, even more at arm's length from state members. Multilateral negotiations have become long, protracted affairs with huge agendas involving increasingly complex matters, as the seven-year history of the Uruguay Round of the GATT illustrates. Yet national legislatures have become marginal to this process. In many cases, elected representatives have limited time or capacity to scrutinize large complicated agreements presented to them as faits accomplis. These agreements, negotiated as a single undertaking, often as a result of informal deals among a few of the most powerful WTO members, left little capacity for citizens to hold their governments accountable. Thus, the procedural basis of legitimacy, based on what Robert Keohane and Joseph Nye have called the "Club Model" of multilateral organizations like the WTO, (10) was called into question as these chains of accountability linking citizens to WTO rule making lengthened and weakened.

The strengthening of the WTO's binding dispute resolution activities raised more legitimacy questions. While domestic courts are at arm's length from governments, the WTO dispute resolution process involves a level of secrecy in the proceedings of both the Panels and the Appellate Body that many, such as Susan Esserman and Robert Howse, find unacceptable:</p> <pre> The rulings of WTO judges affect the public interest in the broadest sense, as is especially evident in cases related to health and the environment. Yet the WTO hearings and submissions remain secret, an unacceptable vestige of the old days of cloak and dagger diplomacy. Conducting hearings and appeals in secret, undermine the legitimacy of the WTO and gives rise to unwarranted suspicions. (11) </pre> <p>The output basis of legitimacy has also been eroding. While it may have been possible in the early days of GATT to claim the benefits to citizens or the global economy of greater trade liberalization, more recent agreements and the distribution of their benefits have brought this claim into question. The negotiation of the Trade-Related Aspects of Intellectual Property (TRIPs) agreement and the subsequent dispute over patent protection and access to essential medicines in the context of the HIV/AIDS pandemic in Africa, for example, have further eroded legitimacy. This agreement is seen by many as serving the interests of large pharmaceutical multinational corporations and their powerful state backers raising questions about the distribution of benefits. Moreover, critics argue, it reflects the marginalization of the least developed countries in negotiations and the fact that the WTO operates only in the interests of a few powerful actors and their corporate allies in the North, despite a formal decisionmaking process based on equality of members and consensus. (12) This informal, opaque internal decisionmaking process has raised troubling questions.

Some scholars, however, such as Andrew Moravscik and Miles Kahler, (13) have preached caution in seeking to hold organizations like the WTO to standards of democracy and accountability that are either overly idealistic and do not reflect real democratic practice, or, given the asymmetries of power in the WTO, might lead to reforms that would, in fact, further marginalize some members. This latter concern is one that we address in our conclusion. Despite their note of caution, we would argue, several other trends have pushed the legitimacy question onto the WTO agenda.

The mobilization of networks of citizens and NGOs in opposition to, and criticism of, the WTO (14) has increased media attention and public awareness of WTO activities.

Growing pressure on a number of WTO members--especially, but not exclusively, in the North--to open up their trade policy process to a broader range of interests has resulted in and been reinforced by the deeper penetration of trade rules into national and local policy areas. Legitimacy, like charity, Mark Halle argues, (15) must begin at home, and the demands for more transparency and access at the WTO often reflect the fact that in many countries trade policymaking has not fully reflected the concerns of many groups in society. In many cases, he argues, the commercial interests of a few powerful corporate actors become defined as the national interest. Aggressively pursued by powerful, large economic actors like the United States or the European Union, these corporate interests have become embodied in agreements, as was the case with the TRIPs. Daniel Esty also argues that a range of alternative voices are missing at the WTO and that such "policy competition" could only enrich and improve trade rule making:</p> <pre> By enriching the political dialogue at the WTO, NGO participation would, furthermore, move the international trading system beyond the mere pluralism (governance by representative interest groups) toward a model of civic republicanism that emphasizes informed and thoughtful debate and decision-making. This shift toward republicanism and participatory decision-making would add legitimacy to the democratic governance.... The participation of NGOs in WTO debates could also help to compensate for deficient representativeness at the national level. (16) </pre> <p>Transparency is often seen as key to ensuring a government's input legitimacy at the national level because it is critical to accountability. The citizens' right to know is central to their capacity to evaluate government decisions and is a building block of trust in the political system. While there has been a documented erosion of representative institutions and declining trust in governments in many countries, (17) evidence also shows that citizens remain firmly committed to democratic norms, which, as Keohane and Nye point out, (18) are also widely held internationally. These strongly embedded norms, coupled with increased access to information technologies, mean that citizens are demanding more transparency--a trend reflected in an Organization for Economic Cooperation and Development (OECD) study showing a huge increase in the passage of access to information laws in member countries in the 1980s and 1990s. (19) Transparency has expanded to mean much more than a public legislative process and citizens' access to a few government documents. As a Canadian legislative committee put it,</p> <pre>

It means that the process by which government makes decisions must

be one that people can understand, a process which they can access,

a process which provides them with the opportunity to make their

voices heard and to have their say in the laws that will affect

their lives. As well, transparency means that the public should be able to find out exactly who is talking to government and what they are talking about. (20) </pre> <p>In order to achieve this level of transparency, the committee argued, the information provided to citizens must be reliable, understandable, relevant, and timely if they are to have a meaningful voice in the policy process.

In the age of globalization, transparency is also seen as a key element of good governance. Transparency of state regulations is necessary to ensure clear, predictable and nondiscriminatory treatment of traded goods and foreign investors, particularly in developing countries. Transparency is a virtue preached by every economic IGO--from the International Monetary Fund to the WTO itself--and business NGOs such as Transparency International. A lack of thus is seen as undesirable and, ultimately, sinister.

A final factor influencing the question of legitimacy and transparency at the WTO is the trend in other international governmental organizations, beginning with United Nations agencies and followed by the World Bank, to accord much more access and, in many cases, formal status to NGOs than is the case at the WTO. (21) This creates demands for the WTO to accord groups a similar status. For all of these reasons, the WTO must address questions of legitimacy, and thus transparency.

New Information Technologies

This debate about legitimacy and transparency takes place within a changing global information and communication context reflected in the development of the Internet in the 1990s. Among the early adopters of this technology, along with the corporate world, were transnational NGOs. (22) As a number of studies have indicated, ICTs, especially the Internet, have become important means of communication for many NGO networks. (23) ICTs have accelerated the development and altered the form of networks where "activists are forming into open, all channel, multi-hub designs whose strength depends on free-flowing discussion and information sharing." (24) While the spread of this technology has by no means been an even one or wholly neutral in its impact, (25) and digital divides continue to exist, the rapid adoption of the Internet for these NGO networks has had several advantages, including:

1. Facilitating internal communication and providing services to members. Strategy discussions and input of members at a distance are all made easier. Thus, technology can strengthen networks by facilitating consultation even where the network is highly decentralized. (26)

2. Disseminating and sharing large amounts of information. The Internet facilitates the sharing and moving of large amounts of complex information easily and quickly. Trade and investment negotiations involve complex and highly technical matters. Resource-poor activist NGOs cannot, or do not wish to, put significant resources into research, which credible entry into the policy debates would require, and were often marginalized as a result. (27) They can, via the Internet, quickly and easily access research done by other organizations that do have resources. The speed of the Internet allows for the strategic sharing of information on the state of play of negotiations and country positions and statements countering the traditional bureaucratic control of information. Thus, it permits rapid, wide, and deep collection and dissemination of information and somewhat levels the playing field so that NGOs, like governments and powerful corporate interests, can now insert themselves into policy debates.

3. Shaping perception and framing policy debates. Disseminating and sharing information is part of an effort of a number of advocacy networks to educate NGO activists and the public about the nature of trade and investment agreements and to raise debates about their impact on their lives. (28) In the case of the Multilateral Agreement on Investment (MAI), (29) for example, groups were able to leak and critique the draft agreement and thus initiate and frame domestic policy debates, especially when mainstream media ignored the issue. When the MAI finally came to public attention in a number of countries, NGOs had already framed the issue.

4. Encouraging and facilitating public participation and mobilization. At the WTO ministerial meeting in Seattle, the Internet played another role as part of a process of organizing and mobilizing opposition to the launching of a new round of negotiations at the meeting venue itself.

5. Providing and opening new public spaces. Some NGOs have become Web-based broadcasting systems that contain thousands of print, audio, and video files and news stories submitted by, and from, the perspective of NGOs and activists. (30) The ability to circumvent mainstream media and publish alternative views easily and inexpensively means that governments and mainstream media have lost exclusive control over the flow of information and the agenda of politics.

The success of groups using the Internet did not go unnoticed by governments which also began using ICTs for the dissemination of information, for the delivery of services and, more recently, for online consultations. However, it is also clear that the ease and speed with which this technology permits the dissemination of information have increased citizens' expectations that large amounts of information will be made available, quickly, by governments.

The WTO and Transparency

It is within this context of eroding legitimacy and greater demands for transparency and changing technology that we examine the issue of transparency in the WTO--first, from the perspective of NGOs seeking to shed light on the work of the WTO and, second, from that of the WTO itself.

NGOs and the Demystification of the WTO

Business organizations have traditionally had both better access to the national political executives in many countries and more resources to stay informed about trade negotiations and the WTO. NGOs, however, have also made their own provisions for obtaining information on WTO activities. Organizations like Third World Network, the Institute for Agriculture and Trade Policy (IATP), and Focus on the Global South have their own representatives in Geneva who provide regular reports on WTO activities, which are circulated widely via listservs and their websites. Others, such as the Corporate Europe Observer, closely monitor the efforts of the corporate community to influence the European Commission on trade policy.

One of the most successful efforts at increasing NGO access to information is represented by the creation of the International Centre for Trade and Sustainable Development (ICTSD) in Geneva. Founded by five NGOs in 1995, ICTSD relies on funding from a number of small European countries (about 65 percent) and foundation grants (35 percent). Its goal is to contribute to a better understanding of development and environmental concerns in international trade "through objective information dissemination, policy dialogues and research support." (31)

ICTSD's weekly publication on trade issues, Bridges, is distributed electronically to over 9,000 subscribers, with a monthly hard copy also mailed out to over 6,000 subsribers. It also publishes German and Spanish editions. Because its resources are free and distributed electronically, many small NGOs, especially in the South, are able to access information. Beyond reporting on the WTO, Bridges provides the context and interprets the meaning of various decisions, panel rulings, or negotiations so that non-trade experts can follow developments. These explanations are particularly important, given that the documents released by the WTO are complex and very technical. Bridges' coverage of trade negotiations has gained a reputation for thoroughness and accuracy among trade negotiators, radical critics of the WTO, and mainstream media. The center also provides resources, facilitates meetings between NGOs and decisionmakers, and responds to requests for information. Over time, the center staff has noted an increased capacity of NGOs in the area of trade policy, especially in the South. (32)

In addition, a number of NGOs, such as the International Forum on Globalization, the Public Citizen in the United States, and the Canadian Center for Policy Alternatives, have published their own guides to the WTO, a number of which are provided free and are downloadable from their various websites.

WTO External Transparency: Disarming the Critics

Under pressure from critics and member governments themselves, the WTO has felt some need to respond to NGO concerns. WTO authority to engage with NGOs is found in Article 5. 2 of the 1995 Marrakesh agreement, which stated: "The General Council may make appropriate arrangements for consultation and cooperation with non-governmental organizations concerned with matters related to those of the WTO." (33)

This vague mandate was clarified somewhat in July 1996 by the General Council through guidelines necessitated by the upcoming ministerial meeting in Singapore in December. An External Relations Office within the WTO secretariat was created in 1995 to deal with both NGOs and national parliamentarians. The office has a small budget for undertaking outreach activities and must, when it wishes to organize a conference or symposium, request a separate budget allocation from the council. The office, consisting of one director and two professional staff, has stayed small despite growing demands and activities. A separate and larger division deals with media relations. The WTO's director-general has a certain amount of discretion in facilitating contact with NGOs, and Renato Ruggierio (director-general in 1998) is credited with having made more effort in this regard. In recent years, changes in external transparency at the WTO have taken the following forms. (34)

1. Access to documents. WTO procedures providing limited public access to documents were adopted in 1996. A number of members, such as the United States, Canada, and the European Union (EU), have been pushing for automatic derestriction of all documents. The General Council has revisited the issue several times. Currently most documents are derestricted immediately upon adoption (i.e., after a decision has been made); however, exceptions are permitted, and this has led to limits on access to about 30 percent of documents. Rules adopted in May 2002 further limited exceptions and shortened the waiting time for derestriction down to eight weeks. Given that many member countries do not restrict their own submissions to the WTO, officials estimate that about 96 percent of documents are now available to the public. (35)

2. The creation of a website. The WTO website was established in 1995, and an NGO page was added in 1998. As the main vehicle to access documents and information about the WTO, website usage, as reflected in hits, has taken off since the 1999 Seattle ministerial. Usage continued to increase, as Figure 1 indicates.

By the end of 2003, the number of hits for the year had reached 270 million. The website has been a widely accessed source of information prior to ministerial meetings. In September 2003 (just before the Cancun ministerial meeting), there were 868,950 visitors to the site from 179 countries.

ICTs have also played a role in allowing the External Relations Office to communicate with a large number of NGOs via an NGO bulletin and listservs that provide information to groups. Since the Seattle ministerial meeting, one listserv has gone from 400 contacts to over 1,400. About 35,000 individuals now get daily information on WTO activities, and visitor sessions on the website have topped 650,000 a month in 2003, compared to an average of just under 400,000 in 2001.

Overall, the office reports it has more contact with groups from the North, partly because those pushing earliest for access tended to be environmental groups, which are more prevalent in the North. Contact has recently increased with development organizations, more of which are based in the South. Of these, development NGOs doing local program work, rather than advocacy, tend to have less direct contact. Even with the prevalence of groups from the North, it should be noted that key organizations such as Third World Network and Focus on the Global South do extensive research on, and monitoring of, the WTO from a Southern perspective.

3. NGO presence at ministerial meetings. The presence of significant numbers of NGOs dates from the Singapore ministerial, and is based on the 1996 guidelines. The process, however, has remained very much ad hoc. NGOs apply to be accredited to attend certain parts of the ministerial meetings. There are no real guidelines as to how many, or which, NGOs will be approved. The only criteria are that they are bona fide NGOs and have an interest in trade. The General Council has been reluctant to provide more specific criteria or a permanent process.

As Table 1 indicates, up until the 2001 ministerial in Doha, NGOs had been eagerly availing themselves of this opportunity. Accreditation provides access for NGOs to some social events and as observers to the plenary sessions of the WTO. These plenaries involve country delegates making set speeches to the assembled delegates. No discussion or bargaining occurs. However, while these NGOs are not at the negotiating table, the real benefit of their accreditation is that they also have access to the meeting venue itself and thus to delegates and international media. Accreditation thus affords a real opportunity to lobby delegates, to network with other NGOs, and to influence media coverage. In addition, the WTO provides meeting space and access to technology, including computers, the Internet, and fax facilities, which permit the NGOs to transmit their version of events to their audience quickly and cheaply. The External Relations Office also provides daily briefings and meeting spaces for a large number of NGO-organized events.

The upward trend in NGO registration and attendance at ministerials, however, was interrupted when the General Council accepted Qatar's invitation to host the 2001 ministerial. The very success of NGOs in disrupting the 1999 Seattle ministerial had led to a situation where, as one official put it, "we became known as bad news for your city," (36) and no other country wished to host the next ministerial. The location became more problematic after September 11, 2001. Between security concerns, the location, difficulties of entry, and limits on accommodation, NGO participation was cut drastically. Although events protesting the WTO occurred in cities around the world, the potential for critics to have a high profile in Doha was clearly limited.

The next ministerial, in Cancun, saw a recovery in NGO involvement and a response on the part of the secretariat to cope with the large numbers. About 955 organizations registered for the Cancun meeting and, with a limit of three accredited delegates per group, it meant once again large numbers of NGO representatives. Further limits were imposed on NGOs in the form of a "superpass," which permitted access to the conference center at any time to only one delegate per group.

4. Symposia and meetings. Interaction among NGOs, member delegations, academics, and the secretariat has also increased as a result of large annual public symposia in Geneva. An example was the one held in the spring of 2004 entitled "Multilateralism at a Crossroads," which attracted more than 1,000 participants. In addition, a myriad of smaller briefings, ad hoc meetings, and workshops, many of which are cosponsored or funded partly by NGOs and member countries, have developed throughout the year.

How effective have these various efforts been in shedding a light on the WTO and its decisionmaking processes and in representing a wider range of voices? Here the picture is somewhat mixed. A clear success story has been the dissemination of documents via the website. The growing volume of documents and the ease of access have led to 15-20 million hits per month and downloads of over 25 million pages. A survey of just under 2,000 website users in 2002 showed that the overwhelming majority used it for news on negotiations and access to documents. Data on hits indicate that over 170 countries are represented and that the top three country users were from the United States, China, and India. The largest proportion of users is from the private sector, academe, and government, followed by NGOs. (37) Comments on the surveys also reflected a greater demand for documents in Chinese and Arabic and a more effective search engine. The digital and North-South divide, in terms of accessing information, seems to be shrinking.

The WTO's strides in the dissemination of information were recognized in the Global Accountability Report undertaken by the British-based One World Trust. (38) In its study of five IGOs, including the World Bank, the UN High Commissioner for Refugees (UNHCR), the OECD, and the Bank for International Settlements, the WTO came second in ranking in online access to information. Even in comparison to large NGOs that are often critical of the WTO, such as Oxfam and the WorldWide Fund for Nature, the WTO ranked higher in the scope of information about the organization available online. However, on the dimension of member control of the organization, the WTO ranked lower, primarily because of problems of internal transparency and the domination of large members in the informal decisionmaking processes. It is unlikely, however, that increasing the amount of information available, although it is critical to accountability, will fully satisfy demands for more consultation and access.

In terms of a voice and the capacity to interact with the trade policy community at the WTO, NGO voices are growing but are still very muted. NGO access at ministerials is still very much on an ad hoc basis. Hopes for a clear system of accreditation to the WTO were dashed with the weak commitment to NGO access expressed in the Doha ministerial declaration. Nor has the website itself been used very effectively as an interactive forum. According to the 2002 survey, most users did not know about, and had not used, the chat room (the Community Forum), which was added in 2000. While the website has added video, including webcasts of ministerial plenaries and downloadable training videos about the role of the WTO, the tendency has been to see the website as a one-way conduit for disseminating information. There has been some increased attention of WTO staff and trade negotiators to engaging some critics and countering information disseminated by NGOs. In 2001, the WTO produced a document, GATS: Fact and Fiction, designed, it claimed, to explore the "myths and falsehoods" being spread by publications such as that of Scott Sinclair of the Canadian Centre for Policy Alternatives. (39) Beyond that, however, the secretariat lacks the time, authority, expertise, and resources to do much more.

While more able to insert themselves into policy debates, the voices of NGOs at the WTO are still fairly muted and real transparency is limited. One reason for this is the lack of a consensus among WTO members around the questions of external transparency, such as giving enhanced participation and greater voice to NGOs (perhaps as observers), or opening up the dispute resolution process, which currently provides only limited access. Some developing country members, such as India and Malaysia, see increased transparency as a stalking horse for powerful, primarily Northern members. Their priority is the lack of internal transparency. As a result of concerns about the decisionmaking process after the Doha ministerial meeting, India and the Like-Minded Group made a number of proposals to the General Council in May 2002. (40) These were not acted on. The lack of progress on fairly basic principles of transparency in decisionmaking procedures reflects the enormous challenges ahead to reform internal processes, made more urgent with the increased membership and huge majority of developing countries.

The least developed countries, moreover, lack the basic capacity to fully participate as WTO members. A number of members clearly see the need to enhance the capacity of least developed members, within the limited budget of the WTO, as a greater priority than funds for further NGO outreach or a more formal NGO accreditation process. A group of NGOs themselves mounted a democracy challenge to the WTO prior to Cancun in June 2003, which focused exclusively on the lack of internal transparency and the limited participation of developing countries in decisionmaking processes. (41) Their open letter to WTO members outlined a series of modest changes similar to those demanded by the Like-Minded Group in 2002.

Are the WTO's efforts to date sufficient to address external transparency concerns? The answers might be found within the experiences of WTO member countries in responding to domestic pressures to increase the transparency of the policymaking process and consult more broadly on trade policy issues. It is, as we indicate below, a cautionary tale for the WTO.

Lessons for the WTO from Members: A Cautionary Tale on Transparency

A number of WTO members have faced pressure to open up their trade policy processes to more public input. The experiences of Canada, Australia, and the EU, three very active WTO members, are relevant since they have made efforts in recent years to make their domestic trade policy processes more transparent. Each established processes of consultation with nongovernmental organizations, even as they championed more external transparency at the WTO itself. All three are well-wired societies, and this has played a role in how they responded to demands for increased transparency and questions regarding the legitimacy of trade and investment agreements. These changes came as a result of the failed negotiations of the Multilateral Agreement on Investment at the OECD, national debates about regional trade agreements, and the controversy surrounding the Seattle WTO ministerial meeting. Their experiences, however, raise questions about the adequacy of their responses to legitimacy concerns, especially in the way they have opted to substitute the dissemination of information and limited, or symbolic, consultations for a full engagement with critics of current trade agreements. What follows is a distillation of some of their experiences in the form of several lessons for the WTO. (42)

1. How much transparency is enough? While the trend is to release greater amounts of information, partly because the technology permits it and makes it cost effective, public expectations are also increasing. If the release is incomplete or partial, questions arise and charges of secrecy are heard. Releasing your country's negotiating priorities and positions is not enough, as Canada discovered, when groups demanded to see the text of the draft agreement on the Free Trade Area of the Americas and, when released after the meetings, complained the release was not timely enough.

2. The truth will come out. Leaks of information are more frequent and move quickly around the Internet, undermining trust and confidence and making the risks of not fully releasing all material that much higher. A leak or release in one system can quickly affect another. Leaked confidential documents prepared by EU's Trade Directorate for the WTO services negotiations (43) led to outrage among Australian NGOs because it revealed the EU's request that Australia remove investment restrictions on Telstra (its phone company) and provide foreign access to postal services. The Australian Fair Trade and Investment Network demanded that the Australian minister publish all such requests and the Australian government's responses to them.

3. Consultations, like love, aren't easy. Broader consultations with NGOs, which require a lot of resources and time, introduce more complexity, and they overburden trade officials who are trying to reconcile, weigh (negotiators are often unsure who and what various groups represent), and evaluate very different perspectives. Particularly challenging is bridging very narrow commercial interests, with which trade negotiators are more familiar, and the broader value claims of other NGOs, with which they are less comfortable.

4. Interaction with whom and on what authority? Technology raises expectations that interaction will be speedy and will not fit with the slower channels of authority in a bureaucratic hierarchy. Interaction with NGO representatives, whether electronic or face-to-face, is problematic given the limited authority of trade officials. Trying to use interactive technology without the skills and training is difficult.

5. The "if you only understood" fallacy. There is a fallacy entertained by trade officials that if officials share information and consult, "they"--that is, NGOs critical of trade policy--will come to understand and accept the official position. Consultations and information sharing are often seen by trade officials and governments as a one-way process, useful to inform and persuade the public of the wisdom of existing policy and not as part of a broadly deliberative process. Some NGOs refer to this as the "tell and sell" strategy and find it unacceptable. (44) Much of the information about the WTO on its website reflects this view. This attitude is increasingly unacceptable to both NGOs and broader civil society.

6. You need to listen as well as you hear. Once NGOs have been consulted, experience suggests they become more demanding about what has happened to the input they provided, how a decision was made, and why their viewpoint was not included. Trade officials are hard pressed in many cases to explain what happened to NGO input after the consultations ended. Yet the consultation process itself raised expectations that this input would be heard and taken seriously. As a result, many NGOs question who is having influence and whether powerful corporate voices are heard more loudly in the back corridors. As a consequence, some dismiss consultations as a public relations exercise and a waste of time.

Groups expect that they will be heard and have an impact. As the OECD indicates in its study of consultations with citizens,</p> <pre>

The use of ICTs to inform and engage citizens in policy-making has

made the policy process more transparent and has generated new

pressures on policy-makers to account for input provided and for

decisions taken. Such developments may introduce unprecedented

degree of direct accountability to citizens and civil servants that

differ from traditional mechanisms of accountability via ministers

and unelected representatives. (45) </pre> <p>Despite these challenges, trade officials we interviewed were unanimous in claiming that increasing transparency and engaging in consultations had improved trade policymaking. More important, they recognize there is no going back to the old days of secretive trade policymaking. The same could be said for the TO.

Conclusion

If the output legitimacy of trade rule making is under attack, the WTO really has no option but, at some point, to deal with questions of process or input legitimacy, meaning the transparency issues, both external and internal. The lessons are clear. More and more demands will be made on the WTO to increase transparency as expectations continue to increase. (46) More resources will be required. With its staff of 601, the WTO is much smaller than the World Bank or the OECD. (47) The secretariat is already overburdened, given the growing complexity and scope of trade rules, and has seen labor problems in the recent past. Gaining more resources for external transparency will, however, require more consensus among WTO members. The very serious and urgent problems of internal transparency and capacity building for the least developed countries are high priorities that must be addressed.

The response will therefore be slow, as the Doha declaration's very weak commitment on transparency suggests:</p> <pre> Recognizing the challenges posed by an expanding WTO membership, we confirm our collective responsibility to ensure internal transparency and the effective participation of all members. While emphasizing the intergovernmental character of the organization, we are committed

to making the WTO's operations more transparent, including through

more effective and prompt dissemination of information, and to

improve dialogue with the public. We shall, therefore, at the national and multilateral levels continue to promote a better public

understanding of the WTO and to communicate the benefits of a liberal, rules-based multilateral trading system. (48) </pre> <p>The declaration also reflects a view of transparency as a narrow, one-way process of conveying information in order to persuade broader publics of the rightness of the course chosen.

The WTO and its members will not be able to control the flow of information or the nature of the debate in this world of contentious trade politics. Individual members, to advance their own interests, will release information, and leaks will quickly move in unpredicted ways. The Doha draft declaration itself, leaked by the United States, was all over the Internet and in the hands of NGOs before the WTO secretariat could put it on the website. NGOs will continue to critique the negotiation of trade rules and, along with the changing mix of member countries, will help push a range of issues, such as the environment, development, and equity, to the forefront. In the long term, it will be in the WTO's interest to open up a channel to address their concerns in a constructive and positive way. Oxfam has indicated very clearly the costs of not acting:</p> <pre> Failure to engage with NGOs has already proved problematic for the WTO. Increasing protests against powerful economic institutions

demonstrate public suspicion and mistrust of these institutions. The mistrust must be addressed through open discussion, information

sharing and subjecting decisions to public scrutiny at both the

ministerial and national levels. (49) </pre> <p>At the same time, defenders of the WTO and the status quo question the representativeness and transparency of NGOs themselves. (50)

The experience of Cancun, moreover, suggests the challenges that lie ahead in forging more balanced agreements given the broader WTO membership. Even those favoring reform of the institution will continue to raise questions about the urgency of addressing power asymmetries and the lack of internal transparency before opening the organization further to the voices of well-resourced, Northern NGOs, not all of whose priorities are shared by groups in the South, and whose enhanced presence risks drowning out the already weak voices of marginalized members.

Clearly, as the experience of some WTO members demonstrates, increasing external transparency is a step forward, but it is not the final solution to democratic legitimacy problems for institutions of global governance. Providing a means by which civil society can have a voice on trade rules and policies, along with reforms that address the serious problems of internal transparency and asymmetry, will be a much more difficult, complex, but ultimately necessary, task.

Notes

Elizabeth Smythe is professor of political science at Concordia University College of Alberta, Canada. Peter J. Smith is professor of political science at Athabasca University, Alberta, Canada.

1. Ruggie labeled this period one of "embedded liberalism." For a review of this literature and a discussion of how the role of international institutions and rules have changed, see Michael Zurn, "Global Governance and Legitimacy Problems," Government and Opposition 39, no. 2 (April 2004): 262-275.

2. Michael Zurn, "Global Governance and Legitimacy Problems," Government and Opposition 39, no. 2 (April 2004): 267.

3. Ngaire Woods, "Holding Intergovernmental Institutions to Account," Ethics and International Affairs 17, no. 1 (2003): 69-80.

4. Ngaire Woods and Amrita Narlikar, "Governance and the Limits of Accountability: The WTO, the IMF and the World Bank," International Social Science Journal 53 (December 2001): 170.

5. Daniel Esty, "The World Trade Organization's Legitimacy Crisis," World Trade Review 1 (March 2002): 7-22; Mark Halle, "Legitimacy: The New Frontier," Bridges 3, no. 2 (March 1999): 13-14; Robert Howse, "The Legitimacy of the World Trade Organization," in Jean-Marc Coicaud and Veijo Heiskanen, eds., The Legitimacy of International Organizations (New York: United Nations University Press, 2001), pp. 355-407; Robert Keohane and Joseph S. Nye, "The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy," in R. Porter, P. Sauve, A. Subramanian, and A. Zampetti, eds., Efficiency, Equity and Legitimacy: The Multilateral Trading System at the Millennium (Washington, D.C.: Brookings Institution, 2001), pp. 264-294; Markus Krajewski, "Democratic Legitimacy and Constitutional Perspectives on WTO Law," Journal of World Trade Law 35, no. 1 (2001): 167-186; Third World Network, "Transparency, Participation and Legitimacy of the WTO," Statement of the Third World Network at the WTO Symposium on Trade and Environment and Trade and Development, Geneva, 15-18 March 1999. An exception is David Henderson, whose provocative dismissal of WTO legitimacy concerns can be followed in an exchange with Daniel Esty, in Henderson, "WTO 2002: Imaginary Crisis, Real Problems," World Trade Review 1, no. 3 (November 2003): 277-296.

6. Markus Krajewski, "Democratic Legitimacy and Constitutional Perspectives on WTO Law," Journal of World Trade Law 35, no. 1 (2001): 169.

7. See the WTO website (www.wto.org) under "What is the WTO?" and "10 common misunderstandings about the WTO." See also Fiona McGillvray, "Democratizing the WTO," Essays in Public Policy No. 105 (Stanford: Hoover Institution, 2000).

8. Ann Florini, "From Protest to Participation: The Role of Civil Society in Global Governance," in Host Siebert, ed., Global Governance: An Architecture for the World Economy (Heidelberg: Springer-Verlag, 2003), p. 114. She credits economist Mancur Olsen with providing the theoretical underpinning for this argument in the case of democratic countries.

9. Zurn, "Global Governance and Legitimacy Problems," p. 269.

10. Keohane and Nye, "The Club Model of Multinational Cooperation."

11. Susan Esserman and Robert Howse, "The WTO on Trial," Foreign Affairs 82, no. 1 (January-February 2003): 138.

12. Fatoumata Jawara and Aileen Kwa, Behind the Scenes at the WTO (London: Zed Books, and Focus on the Global South, 2003); Richard Steinberg, "In the Shadow of Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO," International Organization 56, no. 2 (2002): 339-374.

13. See Andrew Morvcsik, "Is There a Democratic Deficit in World Politics? A Framework for Analysis," Government and Opposition 39, no. 2 (April 2004): 336-363; and Miles Kahler, "Defining Accountability Up: The Global Economic Multilaterals," Government and Opposition 39, no. 2 (April, 2004): 132-158.

14. Jan Aart Scholte with Robert O'Brien and Marc Williams, "The World Trade Organization and Civil Society," in Brian Hocking and Stephen McGuire, eds., Trade Politics: International Domestic and Regional Perspectives (London: Routledge, 1999), pp. 162-178.

15. Mark Halle, "Legitimacy: The New Frontier," Bridges 3, no. 2 (March 1999): 13-14.

16. Daniel Esty, "Environmental Governance at the WTO: Outreach to Civil Society," in Gary Sampson and W. Bradnee Chambers, eds., Trade, Environment and the Millennium (New York: United Nations University Press, 1999), p. 101.

17. Ronald Inglehart, "Postmodernization Erodes Respect for Authority But Increases Support for Democracy," in Pippa Norris, ed., Critical Citizens: Global Support for Democratic Governance (Oxford: Oxford University Press, 1999), pp. 236-256.

18. Robert Keohane and Joseph Nye, "The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy," in R. Porter, P. Sauve, A. Subramanian, and A. Zampetti, eds., Efficiency, Equity and Legitimacy: The Multilateral Trading System at the Millennium (Washington, D.C.: Brookings Institution, 2001), pp. 264-294.

19. Organization for Economic Cooperation and Development (OECD), Citizens as Partners: Information, Consultation and Public Participation in Policy Making (Paris: OECD, 2001).

20. Canadian House of Commons Standing Committee on Industry, Science and Technology, Transparency in the Information Age: The Lobbyists Registration Act, Ottawa, 2001, p. 1.

21. International Centre for Trade and Sustainable Development, "Accreditation Schemes and Other Arrangements for Public Participation in International Fora: A Contribution to the Debate on WTO and Transparency" (Geneva: ICTSD, November 1999). See also Florini, "From Protest to Participation," for a discussion of the experience of NGOs with the World Bank.

22. Margaret E. Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998).

23. Craig Warkentin, Reshaping World Politics: NGOs, the Internet and Global Civil Society (Lanham, Md.: Rowman & Littlefield, 2001).

24. John Arquilla and David Ronfeldt, eds., Networks and Netwars: The Future of Terror, Crime, and Militancy (Santa Monica, Calif.: RAND, 2001), p. 326.

25. For a cautious and sceptical view of ICTs and development in the South, see Robert Hunter Wade, "Bridging the Digital Divide: New Route to Development or New Form of Dependency?" Global Governance 8, no. 4 (2002): 443-466.

26. Charlotte Bunch et al., "International Networking for Women's Human Rights," in Michael Edwards and John Gaventa, eds., Global Citizen Action (Boulder: Lynne Rienner, 2001), p. 25.

27. Caroline Harper, "Do Facts Matter? NGOs, Research and International Advocacy," in Edwards and Gaventa, Global Citizen Action, pp. 247-258.

28. See, for example, the Australian Fair Trade and Investment Network WTO Education Toolkit, available at www.aftinet.org.au (accessed 11 November 2004).

29. The failed MAI was negotiated at the OECD in Paris from 1995 to December 1998. In Canada, national newspaper coverage came only after NGOs had leaked the draft agreement and attacked it on their websites. For a discussion of the NGO campaign and technology, see Peter J. Smith and Elizabeth Smythe, "Globalization, Citizenship and Technology: The MAI Meets the Internet," in Frank Webster, ed., A New Politics: Culture and Politics in the Information Age (London: Routledge, 2001), pp. 183-206.

30. Glen Tarman, "Digital Activism, The WTO and International Trade Rules," Digital Opportunity Channel (New Delhi), September 2003, available at www.digitalopportunity.org (accessed 10 November 2004).

31. For information about ICTSD, see their website at www.ictsd.org. The following discussion is also based on an interview with staff in 2002.

32. Interview with ICTSD staff, spring 2002.

33. Gabrielle Marceau and Peter Pedersen, "Is the WTO Open and Transparent?" Journal of World Trade Law 33, no. 1 (February 1999): 5-49.

34. This section is based on interviews with NGO representatives and officials in the WTO secretariat in October 2001 and June 2003.

35. Interviews with officials in the WTO External Relations Office in October 2001 and June 2003.

36. Interviews with officials in the WTO secretariat in October 2001.

37. WTO Summary Report on WTO Website User Survey (Geneva: WTO, 2002). Available at www.wto.org. (accessed 15 August 2002).

38. One World Trust, Global Accountability Report (London: One World Trust, 2003).

39. Scott Sinclair, GATS: How the WTO New "Services" Negotiations Threaten Democracy (Ottawa: Canadian Centre for Policy Alternatives, September, 2000).

40. Aside from India, the other members include Cuba, Dominican Republic, Egypt, Honduras, Indonesia, Jamaica, Kenya, Malaysia, Mauritius, Pakistan, Sri Lanka, Tanzania, Uganda, and Zimbabwe. The proposal is available from the WTO and also appears in the appendix of Chapter 5 of Jawara and Kwa, Behind the Scenes at the WTO.

41. "The Cancun Democracy Challenge," Civil Society Call to WTO Members for the 5th Ministerial in Cancun, July 2003, available at www.globalpolicyforum.org (accessed 19 August 2003).

42. Based on interviews with officials and NGO representatives in the summer of 2001. More detail is found in Peter J. Smith and Elizabeth Smythe, "This Is What Democracy Looks Like? Globalization, New Information Technology and the Trade Policy Process: Some Comparative Observations," Perspectives on Global Development and Technology, no. 2 (2003): 179-214.

43. EU service demands, containing the requests the commission was making in a variety of service sector areas, were posted on 16 April 2002 on the GATS watch website, www.gatswatch.org/leakannounce.html ("Leaked Confidential EU Documents"). See also "Open Letter to Lamy," 7 May 2002, www.gatswatch.org; and the Australian Fair Trade and Investment Network (AFTINET), at www.aftinet.org.au, 13 June 2002 (accessed 10 November 2004).

44. For a discussion of the limits of consultations, see Josh Lerner, "Beyond Civil Society: Public Engagement Alternatives for Canadian Trade Policy" (Toronto: Canadian Institute for Environmental Law and Policy, 2003), available at www.cielap.org (accessed 11 November 2004).

45. OECD, "Summary Record of the Second Session of the PUMA Expert Group on Government Relations with Citizens and Civil Society" (Paris: OECD, 4 July 2002), p. 6.

46. For the World Bank experience, see Florini, "From Protest to Participation," and the October 2004 letter of protest of twenty-six NGOs over the inadequacy of transparency and consultation processes of the International Finance Corporation (the private sector arm of the World Bank), available at www.bicusa.org (accessed 11 November 2004).

47. Richard Blackhurst, "The Capacity of the WTO to Fulfill Its Mandate," in Anne O. Krueger, ed., The WTO as an International Organization (Chicago: University of Chicago Press, 1998), pp. 31-58.

48. WTO, Doha Declaration (Geneva: WTO, 2001), p. 10.

49. Oxfam et al., Open Letter on Institutional Reform in the WTO (Oxford: Oxfam, October 2001), p. 2.

50. See David Henderson, "WTO 2002: Imaginary Crisis, Real Problems," World Trade Review 1, no. 3 (November 2002): 284. Jan Aart Scholte, "Civil Society and Democratically Accountable Governance," Government and Opposition (April 2004): 211-233, and Florini, "From Protest to Participation," argue the need for NGOs to address issues of representation and transparency from a more sympathetic perspective.

Figure 1 World Trade Organization Website Hits (in millions)

June 1999 7
June 2000 11
February 2001 8
April 2001 12
May 2001 16
June 2001 17

Source: World Trade Organization, External Relations Office.

Note: Table made from bar graph.

Table 1 NGO Attendance at WTO Ministerial Meetings

Location Number of NGOs Number of Delegates

1996 Singapore 108 235
1998 Geneva 128 362
1999 Seattle 767 2,089
2001 Doha 365 365 (a)
2003 Cancun 955 NA (b)

Source: World Trade Organization, data availableonline at
www.wto.org/english/forums_e/ngo_e.htm.
Notes: a. This is the number registered the week before the ministerial.
A number of NGOs were unable to attend, and the limit per organization
was one delegate, in contrast to Seattle where four was the limit.
b. The number of groups that were registered. Final figures of delegates
are not available.