Transparency is one of the important requirements for democratic governance and equitable distribution of resources. It allows the public to form opinions on the basis of facts in place of false claims. Access to diverse opinions sensitises us to various needs and concerns. Public opinion formed on the basis of information fed from the top is bound to be fragile, endangering the longevity of the institutions. This is true not only for national but also for international institutions.
With its steadily widening scope and ambit, the World Trade Organisation (WTO) is influencing the lives of common people around the world and requires broad-based acceptability. Legally, its membership extends only to states and customs territories. Negotiators are only select representatives of members, be it for amendments in the existing agreements or new agreements within the WTO framework. The negotiating proposals and developments in the negotiations have traditionally been uploaded on the WTO website. This enabled any interested person to study them and comment upon them through academic writings or newspaper articles.
The process, however, has undergone a change. Nowadays, many of the important documents relating to the ongoing negotiations have restricted access. These are accessible only to a limited set of persons, such as those working in government offices and important international organisations. It makes one wonder about the reasons and advisability of such secrecy and closed-door negotiations. While international negotiations may take place only with government representatives, a government is responsible to its people.
Concessions made at international trade negotiations have important economic, social and political implications at home. Sovereignty is no longer unlimited. It is subject to obligations a State has undertaken at the international level. Democracy at home is not going to make much difference for people if important deals are finalised in association with super-national organisations that curtail the power of a government vis-à-vis unaccountable non-state actors. These include not only international organisations but also powerful corporate houses and non-government organisations.
Large corporate houses are important players in international trade negotiations. Agreements like TRIPs and the Agreement on Investment Facilitation (currently under negotiation) are largely formulated to promote their interests. Most of the documents related to the ongoing negotiations for Agreement on Investment Facilitation have restricted access. This is also true for some of the important documents in other negotiations as well. The public needs to know not only the outcome of negotiations but also the issues debated during the negotiations.
Corporate actors get rights against the State as a result of negotiations between governments. These rights, at times, confer upon them the power to deeply impact the lives of common people. They not only curtail the regulatory powers of the State but may also contradict the obligations and rights of a State under other international treaties and norms. General discussion in the media and academic circles helps to finalise a deal that has wider acceptance.
The public has suspicion against persons and countries in power and influence. It is easy to mobilise this suspicion to destabilise the established practices and norms. A general right-wing reaction in national and international politics we are witnessing is one of the repercussions of this resentment. In international negotiations, there is always a suspicion that powerful and influential countries have their way and others are forced to comply. It is not always true, but confidentiality fuels misinformation and resentment.
Power and knowledge, as Foucault says, are interrelated. Knowledge is not only availed but also created by the exercise of power. Persons and organisations with knowledge are the ones who have actual power in the globalising world. By restricting access to information, we restrict access to power, and democracy becomes a sham. An agreement once finalised and handed out to the ill-informed public as fait accompli, and accompanied by logic and reasons that were never questioned by those who could question it because they did not have access to the negotiating process, lacks what H LA Hart calls ‘general acceptance’. Continuation of this process may breed resentment and confusion.
The GATT/WTO legal framework, through its slow and steady process, has been developing this ‘general acceptance’. This is evident by the fact that most of the regional and free trade agreements either follow the WTO legal framework or just refer to it. The latest important example is the Regional Comprehensive Economic Partnership (RCEP), which just refers to the WTO Agreements as far as legal issues apart from market access are concerned. Resorting to an undemocratic and non-transparent method by shutting out the general public from the negotiating process may pose a challenge to this growth of ‘general acceptance’.
(The author is a professor at National Law University, Odisha)