4.1 Introduction
In June 2016, for the first time, a ‘gender perspective on trade’ was discussed as part of the Annual Session of the Parliamentary Conference on the WTO, entitled ‘What Future for the WTO?’Footnote 1 The event was organized by the Inter-Parliamentary Union and the European Parliament on the premises of the World Trade Organization (WTO) in Geneva. This is important. Why? Because by 2016, most institutions of global governance had begun to incorporate gender perspectives, while for the most part trade governance, whether national, regional, or international, had been resistant to gender considerations despite ongoing efforts for change. This is true both for the European Union’s Directorate-General for Trade (DG TRADE)Footnote 2 and the WTO (although less so for EU DG TRADE), which makes it especially remarkable that the above initiative was led by EU Members of Parliament,Footnote 3 and the discussion hosted on WTO premises. The press release for the session stated that ‘parliamentarians from 57 countries and the World Trade Organization’s leadership, civil society organizations, all in all around 400 participants’ would be present. Thus, clearly, there was interest and, for the first time, the Outcome Document of the Annual Session made a clear statement about gender mainstreaming: ‘We note that gender mainstreaming and women’s empowerment are instrumental to development strategies for achieving gender equality and are key to the eradication of poverty. Therefore, we encourage policymakers to mainstreaming [sic] gender in macro-economic policies, especially in trade policy.’Footnote 4
Thus, the responsibility to mainstream gender in trade policies remained to be shouldered by WTO member governments as they wished, without oversight, and without any formal role for the WTO. This remains true despite significant and promising developments at the WTO since 2017, including the Joint Declaration on Trade and Women’s Economic Empowerment,Footnote 5 the introduction of the Gender Focal Point, the Informal Working Group on Trade and Gender, the International Trade and Gender Research Hub, and the proposed Joint Ministerial Declaration on the Advancement of Gender Equality and Women’s Economic Empowerment within Trade.Footnote 6 Indeed, the difficulty of mainstreaming gender into global trade governance was reinforced by the WTO’s MC12 Outcome Document, paragraph 13 of which contained a profoundly anodyne statement ‘recognizing’ women’s economic empowerment and ‘taking note’ of the work of the WTO, the United Nations Conference on Trade and Development (UNCTAD), and the International Trade Centre (ITC) on the subject.Footnote 7 The paragraph stood as proxy for the Joint Ministerial Declaration mentioned above, which, rather than being approved at MC12 as expected, was placed on hold.
The purpose of this chapter is to paint a picture of why the WTO has proved such a difficult case for the representation of women and women’s interests. While other international organizations, including organizations of global economic governance, have incorporated some form of representation of women and their interests, mostly through gender mainstreaming, the WTO has long been resistant. A small exception is through its cooperation with the Aid-for-Trade Programme,Footnote 8 which incorporated gender mainstreaming in 2011. While this represented a significant milestone, many undoubtedly remain disappointed.
So why is it that the WTO remains resistant to adopting gender mainstreaming openly? The chapter answers this question by giving six reasons in the following six sections:
1. Women did not ‘get in on the ground floor’ at the WTO;
2. The locus of power at the WTO rests with the members, as exemplified by:
a. the requirement for consensus and the ‘single undertaking’;
b. the importance of member proposals; and
c. the institutional weakness of the Secretariat;
3. The relative lateness and weakness of WTO involvement with civil society compared to other institutions of global economic governance;
4. The formative clashes during the 1980s and the 1990s between gender and trade activism and trade liberalization;
5. The lex specialis nature of the WTO dispute settlement system; and
4.2 Path-Dependent History
4.2.1 Reason 1: A Simple Fact – Women Did Not ‘Get in on the Ground Floor’
To begin, there was no possibility for women to ‘get in on the ground floor’Footnote 9 at the founding of the WTO in 1994 because the WTO was, so to speak, built on the ‘mezzanine’ while the General Agreement on Tariffs and Trade (GATT) occupied the ‘ground floor’. The ‘ground floor’ was created during the ratification of the GATT in 1947,Footnote 10 and adopted in full as part of the founding agreements of the WTO in 1994.Footnote 11 This means that the WTO was not a ‘new’ organization created from whole cloth. Rather, it was incorporated in full and built upon the GATT regime, the history of which spanned almost five decades.
As Vickers describes, following North,Footnote 12 ‘getting in on the ground floor’ is important because institutions are path-dependent; they are self-reinforcing feedback loops in which each loop makes the next loop more predictable and makes changing the nature of the loop more difficult. More specifically, the cost of establishing and restructuring institutions is high and most institutions are complex. This creates disincentives against restructuring and changes of direction and reinforces over time any policy direction initially taken by the institution. This means that opportunities for inclusion within institutions usually arise only at the time of establishment and times of restructuring. For example, as Underhill writes, ‘those market constituencies which successfully exert influence on the process of institutionalization, particularly at its early stages, are likely to find their interests better represented than others’.Footnote 13 Walby adds that restructuring occurs almost exclusively at critical junctures, building upon the ideas of ‘rounds of struggle’ developed by Edwards, and ‘rounds of accumulation’ developed by Massey.Footnote 14 Thus, one could argue that the creation of the WTO could have been an opportunity for the representation of women and their interests provided by restructuring.
The difficulty posed by the WTO is that, as stated, the ‘ground floor’ was the establishment of the GATT in 1947, because it was incorporated in full as part of the founding agreements of the WTO in 1994. The GATT 1947 was entirely blind to gender and made no provision for representation of women and women’s interests as such. Thus, when the WTO was established in 1994, it incorporated all the negative effects of this path-dependency that made the representation of women and women’s interests especially difficult. The foundation of the WTO in 1994 was not, therefore, an opportunity to ‘get in on the ground floor’. It was not an opportunity created by restructuring, since the restructuring was partial and conditioned by the GATT, by subsequent rounds of multilateral trade negotiations, and by almost five decades of global trade governance under the GATT regime. All of these factors excluded gender analysis and the representation of women and women’s interests.
This failure to address the representation of women and women’s interests when the WTO was founded in 1994, a failure embedded in the practices and ideas of a half-century-old path-dependent institution, kept the GATT/WTO regime on a path that did not address the representation of women and women’s interests. With no opportunity to ‘get in on the ground floor’ in 1947 or 1994, there was little likelihood that it would be considered necessary to address the lack of representation of women and women’s interests during subsequent rounds of negotiations or potential restructurings.
Indeed, there was little success in raising the subject within the WTO until at least 2017. For example, the 2004 Sutherland ReportFootnote 15 simply did not mention gender or women despite its mission to recommend reforms ensuring the WTO’s continued viability. The 2007 Report of the First Warwick Commission, in its turn, made only fleeting mention of women and gender, and did not address either substantively in any way.Footnote 16 This is despite a relatively widespread understanding in 2007 of the gendered effects of trade, even within the WTO Secretariat.Footnote 17 As one member of the Secretariat put it in 2007:
By now I think it’s an accepted fact that in certain areas, I think more in developing countries than in developed countries, trade liberalization, or sometimes … protectionism has a specific effect upon a sector where there [are] a lot of women working, so there is a gender aspect to it. […] I think by now, there has been enough done by different people, academics, NGOs, [that] have proven that you can establish a link between [gender] and trade, and I would say particularly trade policies and gender, and particularly the effects on the gender balance within a sector, whether it’s agriculture, whether it’s industrial, whether it’s services, particularly in developing countries. […] By now, as I said before, I think there is enough research or evidence on the table.Footnote 18
Silence such as that of the Sutherland Report supports Hawkesworth’s contention that feminist knowledge is erased by evidence blindness, which in turn insulates vested interests that are themselves gendered (and racialized).Footnote 19 In this way, it made sense that the traditional silence of the GATT/WTO regime concerning women and gender would be preserved and extended. Young, who was a member of the Warwick Commission, expressed this dynamic when she stated that ‘structural power derives its power from the control over ideas and knowledge, and from the ability to deny access to others who hold different views’.Footnote 20 In this context, the placement of the WTO ‘outside’ the United Nations (UN) system as a related organizationFootnote 21 becomes even more important, since the WTO falls ‘outside’ the mandate of UN Women to promote and advance gender mainstreaming throughout the UN system.Footnote 22
4.3 ‘High’ Politics
4.3.1 Reason 2: The Locus of Power Rests with the Members
4.3.1.1 The Requirement for Consensus and the ‘Single Undertaking’
Decisions at the WTO are made by consensus, barring certain exceptions.Footnote 23 This means that formal changes to accomplish the representation of women and women’s interests can be blocked by any single WTO member for any reason. This includes, of course, members that have shown themselves unsympathetic to gender equality.Footnote 24 Moreover, the ‘single undertaking’ requirementFootnote 25 – that nothing be agreed until everything is agreed – strengthens this veto to cover the entirety of WTO negotiations at any given time. This greatly increases the difficulty of representing women and women’s interests at the WTO.
Amongst institutions of global economic governance, only in the WTO can the vote of a single member block a change in rules. By contrast, the International Monetary Fund (IMF) decides policy by majority vote of its Board of Governors, with votes allocated amongst its 187 members according to the size of their respective quotas, which are themselves based roughly upon the relative size of each member’s economy.Footnote 26 Voting power at the World Bank and its component parts – International Bank for Reconstruction and Development (IBRD), International Development Association (IDA), International Finance Corporation (IFC), Multilateral Investment Guarantee Agency (MIGA) and International Centre for Settlement of Investment Disputes (ICSID) – is distributed according to each member’s contribution to the capital stock of the Bank, which is roughly in accordance with the size of a given member’s economy.Footnote 27
Neither the voting system of the IMF nor that of the World Bank is democratic, but both are structurally more open to the possibility of reforms to advance the representation of women and women’s interests than the consensus-based voting system of the WTO, which gives any individual member the power to veto any initiative. The same is true for the UN General Assembly and for any other organization in which decisions are taken by majority vote of all members.Footnote 28 It follows that any organization with a voting system that is not consensus-based will be more open to movement towards the representation of women and women’s interests, and to the introduction of ‘new issues’ in general, as compared to the WTO.
Yet the hindrance to the representation of women and women’s interests posed by the requirement for consensus is still greater. This is illustrated by Elsig and Cottier’s ‘incompatible triangle’, in which they highlight that consensus combines with the ‘single undertaking’ and the member-driven nature of the WTO to render the decision-making process still more difficult.Footnote 29 Mentioned as one of the reasons for the difficulties of the 2001 Doha Round, the ‘single undertaking’ has a legal and a political aspect. The former requires that all WTO agreements be interpreted as a single treaty, but the latter is of greater concern here: it requires that nothing be agreed in WTO negotiations until everything is agreed by all members.
As such, the political aspect of the ‘single undertaking’ is an extension of the consensus principle, but one that strengthens the hand of a member objecting to a given initiative. It does so by giving such a member leverage over a wide scope of negotiations, rather than a single issue area or subset. In effect, this increases the power of the de facto veto that the consensus principle by implication grants to every member. By extension, this increases the power held by a hypothetical member or group of members opposed to advancing the representation of women and women’s interests within the WTO.
Indeed, even without active opposition, the ‘single undertaking’ would reduce the likelihood of advancing the representation of women and women’s interests in WTO negotiations. This is because of what Elsig and Cottier call ‘a type of inherent negotiation logic among contracting parties that being a first mover in terms of making a meaningful concession is seen as a disadvantage as subsequent pressures on the other parties to follow cannot be maintained’.Footnote 30 In short, then, the ‘single undertaking’, as a particular extension of the consensus principle and as conditioned by the member-driven nature of the WTO, both increases the relative power of the veto of any member opposing the representation of women and women’s interests, and makes a negotiated advance less likely even absent active opposition.
4.3.1.2 The Importance of Member Proposals
The importance of member proposals constitutes another obstacle to the representation of women and their interests in the WTO, as illustrated by the following quote from a senior member of the Secretariat: ‘The Americans and the Canadians have come, and I said, “Ask your members to propose it.” [They] never proposed [anything concerning gender or women] … And the DG will not do it if members are not willing. How come, you know, Norway, EC, US, how come they don’t? Just a proposal.’Footnote 31
It might be thought that the location of power within the WTO membership constitutes an opportunity to represent women and women’s interests, since it removes the potential obstacle of an intransigent bureaucracy. However, closer examination shows it to be on balance a significant hindrance, since it resists orderly agenda creation and makes veto use institutionally simple and painless.Footnote 32 It is fundamental to the structure and identity of the WTO that it be primarily a forum for negotiation among members concerning the governance of international trade. In practice, this largely takes the form of negotiations concerning the administration of trade agreements and further liberalization of global trade. This places the burden of initiating change upon the members themselves and creates a de facto requirement that issue areas be discussed predominantly in terms of their quantified effects on trade or economic well-being, not their ethical merits or their accordance with international administrative or human rights law.
Conversely, the WTO’s primary function as a forum for negotiation can create a disordered atmosphere for discussion in which any member delegation can place any issue area on the agenda, essentially without reference to other members’ or external prioritization. In short, the structure that makes it easy in theory to introduce a topic is the same structure that allows any member to block any initiative for any reason, and that resists orderly construction of agendas for negotiation and the introduction of new issue areas.
Within this structure, there are four basic ways a proposal by a member could advance the representation of women and women’s interests. First, a member could propose that the issue area be brought within the purview of the WTO in a manner that all members could accept. Given the difficulties of reaching consensus in general during the Doha Round, given the necessary expansion of the WTO’s scope and that one member’s vote can block any prospective WTO agreement, and given members’ differences in gender regimes, this approach is probably impossible.
Second, a proposal could treat the representation of women and women’s interests as part of ‘non-trade’ initiatives already within the WTO’s purview, or already being considered. For example, Director-General Lamy stressed in his speeches the importance of human rights, and research was done in collaboration with the International Labour Organization (ILO) as early as 2007.Footnote 33 Although the latter did not concern gender, the ILO is explicitly concerned with redistribution. In theory, sustainable development could also provide an opening for the representation of women and women’s interests, as occurred in the EU’s DG TRADE.Footnote 34
Third, many have argued for a ‘social clause’ in WTO agreements, which would allow ‘trade-distorting’ policies to be justified as a social good.Footnote 35 Such a clause was included in the 1947 Havana Charter and discussed during negotiations leading to the WTO’s founding. Certainly, the representation of women and women’s interests could in theory constitute a social good. However, a social clause is unlikely to be adopted, having been rejected at the December 1996 WTO Ministerial Conference because it was understood to threaten the comparative advantage of low-wage developing countries.Footnote 36 This is important because it impedes the ability of WTO members to cite labour practices that are exploitative of women to justify trade-distorting policies.
Fourth, a Generalized System of Preferences (GSP)Footnote 37 could incentivize policies in developing countries that promote the representation of women and women’s interests by granting extra market access to developing countries that adopted the preferred policies.Footnote 38 This approach concerning labour standards has been implemented with success by European countries towards developing countries since 1971.Footnote 39 Moreover, the GSP was upheld by the WTO Appellate Body in 2004 as long as GSP standards were tied to ‘objective’ factors and the implementing WTO member did not discriminate between countries meeting the standards.Footnote 40
While GSP might create minor advances, it is unlikely to improve the representation of women and women’s interests significantly because it is not properly a WTO initiative, but a member-initiated and member-specific set of preferences. Further, pursuant to the WTO Agreements, GSP can be applied only to developing countries, reducing considerably its potential to accomplish the representation of women and women’s interests globally. Moreover, it is specifically designed to allow developed countries to tie trade preferences to policy preferences vis-à-vis developing countries. The connection of GSP with developing countries could also lead to its association with discourses of colonialism, creating resentment and possibly associating the representation of women and women’s interests with ‘the West’ or ‘the North’ and concerns about undermining developing countries’ sovereignty, culture, and traditions.Footnote 41
4.3.1.3 The Institutional Weakness of the Secretariat
Another possible avenue for the representation of women and their interests would be for the WTO bureaucracy to lead by example, including by the gender composition of its staff and the potential to initiate research. The problem here is the institutional weakness of the Secretariat, which follows directly from the WTO’s primary function as a forum for negotiation among members. This makes it very difficult for the Secretariat, the largest bureaucratic body within the WTO and the one with the most equitable gender composition, to introduce items for negotiation. It also severely restricts the Secretariat as an access point for introducing the representation of women and women’s interests into the WTO. As Elsig writes, ‘the role of the Secretariat in multilateral trade negotiations has to be read in conjunction with the “member-driven” nature of the WTO’.Footnote 42 The Sutherland Report similarly notes that the Secretariat cannot take a more active, agenda-setting role, and expresses regret that this should be so.Footnote 43
What one finds upon closer inspection is that while the Secretariat became fairly successful in achieving equal representation of women and men,Footnote 44 the real loci of power within the WTO continued for a long time to be dominated by men; it remains uncertain how the Secretariat could effectively address this if the members did not want to. Indeed, while the WTO does not publish the gendered composition of its members’ delegations,Footnote 45 the gendered composition of the Appellate Body and of the various Councils of Chairpersons under the General Council for two decades after the WTO’s founding is very telling. Among Appellate Body members in 2013, six were men and only one a woman.Footnote 46 From 1994 until 2013, former members included fourteen men and only three women.Footnote 47 Among chairpersons of the General Council in 2013, thirteen were men and only one a woman.Footnote 48 Among chairpersons of the Trade Negotiations Committee Council, nine were men and only one a woman.Footnote 49 Of chairpersons of the Council for Trade in Goods, the 2013 division was ten men and three women.Footnote 50 For Trade in Services, remarkably enough, the division was two men and two women.Footnote 51 For chairpersons of the Committees of Plurilateral Agreements, the division in 2013 was two men and no women.Footnote 52
This represents a significant disparity and suggests that even descriptive gender equality in the SecretariatFootnote 53 has had little effect upon the gender composition of those bodies and councils where it was dictated by the members. Indeed, the member-centric structure of the WTO inhibited for many years any initiative to balance the gender composition of delegations to the WTO, and of course the balanced descriptive representation of women is no guarantee of the substantive representation of women’s interests.
By the early 2020s, the situation had improved but only to a limited extent. It must be noted that the ongoing Appellate Body crisis has affected these figures; nevertheless, by the expiration of the term of the last sitting Appellate Body member on 30 November 2020, of twenty-seven former Appellate Body members only five were women.Footnote 54 Among chairpersons of the General Council in November 2021, nine were men and six women.Footnote 55 Among chairpersons under the Trade Negotiations Committee Council, five were men and four women (though this includes the Committee on Agriculture, Special Session, and the Sub-Committee on Cotton).Footnote 56 Of chairpersons under the Council for Trade in Goods, nine were men and five women.Footnote 57 For Trade in Services, four were men and none women.Footnote 58 Finally, the only chairperson of a Committee of Plurilateral Agreements was a woman.Footnote 59 Again, this is an improvement from the very low bar of 2013, but it is a long way from parity.
How then might the representation of women and women’s interests be achieved more fully and effectively? A senior member of the Secretariat described succinctly both the technical possibility of success and the most significant impediment: ‘A priori, I would not say that the structure of the Organization would prevent gender and trade or any other new issue … [from being] looked at, at least from the Secretariat’s perspective. The membership, then you may have problems … Just say, if we can expand our research, if we can be … a little more of an independent Secretariat.’Footnote 60
One possibility, initially appealing, would have the Secretariat becoming more independent and investigating the representation of women and women’s interests on its own initiative. The Secretariat is the only part of the WTO with a quasi-executive capacity to which greater independence could be delegated by WTO members. However, to be made formally, any such reform would require the consensus of WTO members, as would any determination to follow the Secretariat’s findings. This might require expanding the scope of the WTO and would certainly require expanding the Secretariat’s mandate and size. Thirteen years into the WTO’s existence, it was considered highly unlikely to come to pass – ‘never, never, never’, as one interviewee put it.Footnote 61 Elsig echoed this sentiment three years later when he noted that ‘the reluctance of Members to delegate powers to the Secretariat has not changed [since 1994]’.Footnote 62 The prospect has not become significantly more likely during the ensuing years.
The possibility that the Secretariat could develop openly, proactively, and independently its research activity to where it could investigate of its own accord the representation of women and women’s interests may be dismissed quickly. To initiate research and make suggestions without the formal approval of the members, it would be necessary for the Secretariat to assume powers it currently lacks. There is currently no reason to believe that the members would allow the Secretariat to arrogate to itself any such power.
Further, interviews with its senior members show that the political culture within the Secretariat before 2010 was not amenable to proactive reform: ‘There is still a lot of conservative thinking in this house. That may actually lead to, you know, opposition to trying out new things, and I’ve seen this in practice. … That’s one thing I’ve experienced very much – you have a conservative school and a progressive school.’Footnote 63 Another interviewee stated plainly that ‘the Secretariat in the WTO has zero initiative power. It can never propose something’.Footnote 64
In sum, the locus of WTO power in its membership has created a number of hindrances and disincentives that have militated against the representation of women and women’s interests. These are functions of the ease with which a single member can both block any initiative and introduce any topic for discussion. Further, the structure of the WTO has constrained the Secretariat’s ability to promote the representation of women and women’s interests. Nevertheless, acting within these constraints, the WTO and the Secretariat have since 2017 taken important steps toward addressing gender. The 2017 WTO Declaration on Trade and Women’s Economic Empowerment,Footnote 65 currently signed by 127 WTO members and observers,Footnote 66 is exactly the sort of initiative from which institution-level WTO engagement with gender can begin to emerge. It is member-driven but firmly within the realm of soft law and soft power, it sidesteps the weakness of the Secretariat and the requirement for consensus, but it nonetheless speaks for the WTO as an institution and constitutes a significant statement of intent. It has also given cover to the Informal Working Group on Trade and Gender, the Gender Focal Point, and the Secretariat’s Gender Research Hub, which have provided fora for discussing and coordinating research on trade and gender taking place outside the WTO. It may be that in years to come, these initiatives are looked upon as the beginning of a critical mass of support for formal, institutional, member-driven engagement with gender at the WTO.
4.4 ‘Low’ Politics
4.4.1 Reason 3: The Relative Lateness and Weakness of WTO Involvement with Civil Society
The WTO took significantly longer to include civil society contributions than the World Bank, IMF, Asia-Pacific Economic Cooperation (APEC), and other institutions of global economic governance. This isolated the WTO to a significant degree from what True and Mintrom have called ‘transnational networks of policy diffusion’ which helped to promote gender mainstreaming policies in many states and international organizations (IOs).Footnote 67 This is important because, in general, it appears that IOs that engaged more extensively and earlier with civil society than the WTO also did a great deal more than the WTO between 1994 and 2014 to advance the representation of women and their interests. This is true even if ‘gender mainstreaming’ during this period was relatively less successful at the IMF than at the World Bank, and less successful at the World Bank than, for example, in development projects operating under the aegis of German or European agricultural policy.Footnote 68 It is also true even if the adoption of mainstreaming at organizations such as the World Bank was more successful as policy than practice.Footnote 69 Indeed, the WTO did significantly less than other IOs to represent women and their interests during the first two decades of its existence.
True and Mintrom argue that transnational networks amongst non-state actors, particularly international non-governmental organizations (INGOs), offer the ‘most compelling explanation’ for the diffusion of ‘gender mainstreaming’ across 110 countries and numerous international organizations by 2001.Footnote 70 They show a strong correlation between openness to policy networks supportive of gender mainstreaming, adoption of gender mainstreaming policies by national governments, and adoption of high-level mechanisms to implement gender mainstreaming, such as independent central government ministerial portfolios. Even though their analysis focuses upon states, it nonetheless constitutes a strong argument that openness to such networks is an important contributory factor to institutional adoption of ‘gender mainstreaming’ policies in general, including within global economic governance.
The WTO’s position outside the gender mainstreaming mandate of UN Women makes it crucial that it be open to transnational networks of policy diffusion. That it was more open in 2014 than in 1994 is well-established; for example, NGO attendance at WTO Ministerial Conferences increased from 108 in 1996 to 812 in 2005. Nevertheless, many experts argued that WTO engagement with NGOs and other civil society organizations (CSOs) was more superficial and slower in development than in other IOs during the same period. For example, Clark describes how the World Bank improved its relationship with CSOs during the late 1980s and 1990s.Footnote 71 The Bank expanded operational collaborations with CSOs, engaged them in ‘country-level strategy and policy formation’, expanded its public disclosure of information, established international structured dialogue with CSOs, including consultative forums on major topics and policies, and sought to convince member governments to pursue greater engagement with CSOs.
By contrast, for most of its first two decades, the WTO did not engage or support the involvement of CSOs in a way that approached what the World Bank introduced. Thus, in 2010 Bonzon labelled ‘rudimentary’ three of the most important policy documents governing WTO engagement with civil society: the Decision of the General Council on the Procedures for the Circulation and De-Restriction of WTO Documents (1996; revised 2002); the Guidelines for Arrangements in Relations with Non-Governmental Organizations (1996); and the submission by civil society interests of amicus curiae briefs.Footnote 72 He emphasized that the Guidelines stated that NGOs could not be directly involved in WTO work,Footnote 73 and that closer cooperation with NGOs could be achieved ‘through appropriate processes at the national level’.Footnote 74 This testifies to the absence of will within member governments at the time for the WTO itself to engage closely or very actively with civil society.
Conversely, as van den Bossche notes, during the same period, the UN Economic and Social Council (ECOSOC) provided for three levels of NGO engagement, granting ‘general consultative status’, ‘special consultative status’, or ‘roster status’. The first of these granted rights well beyond the level of access or engagement granted by the WTO to any NGO or CSO.Footnote 75 Even the IMF may be said to have engaged civil society at least as extensively as the WTO, if not more so. In the 1990s and early 2000s IMF management began to seek closer relationships with Jubilee 2000, Caritas International, and Oxfam, amongst others, while also implementing Poverty Reduction Strategy Papers (PRSPs), the Poverty Reduction and Growth Facility (PRGF), the Heavily Indebted Poor Countries (HIPC) initiative,Footnote 76 and the Independent Evaluation Office (IEO).Footnote 77 Moreover, IMF and CSO meetings ranged between forty-five and seventy-five per year from 2001 through 2005, comprising interaction with 330 different CSOs annually.Footnote 78
Finally, in 1995, APEC founded the APEC Business Advisory Council (ABAC), which contributed to the 2013 APEC Policy Partnership for Food Security (PPfFS),Footnote 79 and to the 2011 APEC Business Travel Card Programme.Footnote 80 In addition, from 1993, the APEC Study Centers Consortium (ASCC) has met annually to evaluate APEC progress and policy. It comprises fifty APEC study centres in twenty APEC member economiesFootnote 81 and was established to ‘foster regional cooperation among tertiary and research institutes to promote greater academic collaboration on key regional and economic challenges’.Footnote 82 Amongst the WTO’s Public Forum, Institute for Training and Technical Cooperation (ITTC), and Advisory Centre on WTO Law, only the first entailed comparable engagement with civil society before 2014, and none integrated itself equally within member countries.
What one finds as a result of the WTO’s much later engagement of civil society is exactly what one would expect to find if True and Mintrom’s argument concerning transnational networks of policy diffusion were to hold with IOs, and if the effects of their argument were amplified by path-dependency. It appears that IOs that engaged more extensively and earlier with civil society also did a great deal more by 2014 than the WTO to advance the representation of women and their interests. For example, APEC committed to gender mainstreaming after the Women Leaders Network (WLN) began in 1996 to lobby APEC to include gender issues in its economic forum. It was promoted in 1997 by Canada, which was APEC chair at the time.Footnote 83 The support of the Canadian International Development Agency (CIDA) for WLN led to APEC’s Framework for the Integration of Women in APEC,Footnote 84 which determined that all proposals related to general or sectoral policies and programmes would be analysed from a gender-equality perspective to ensure positive, equitable impacts.Footnote 85 APEC thus became the only multilateral economic organization to incorporate ‘gender mainstreaming’ throughout its policy initiatives.
Still other international organizations engaged more closely and extensively than the WTO with civil society and made greater progress towards the representation of women and women’s interests between 1994 and 2014. At the 1999 UN Conference on Financing for Development (UN-FfD), the ‘Monterrey Consensus’ established gender budgeting. By 2000, the UN System comprised 1,300 gender focal points.Footnote 86 Moreover, UN Security Council Resolution 1325 called for ‘the integration of gender across UN security policy and operations’.Footnote 87 Even if delayed in implementation and of questionable effectiveness,Footnote 88 there remained in 2022 no WTO parallel to gender budgeting, Resolution 1325 or the 1,300 gender focal points. The World Bank and UNDP have introduced gender budgeting. This is true even if UNDP ‘emphasises women’s reproductive role in the care economy’,Footnote 89 and even if gender budgeting at the World Bank is intended to improve the economic efficiency of women in the care economy, reducing itself to an ‘investment strategy in mothers for growth’.Footnote 90 Thus, again, where an institution has engaged more extensively than the WTO with civil society, it has generally been able to represent women and women’s interests earlier and at a level unmatched by the WTO.
4.4.2 Reason 4: The Clash of Non-compromising Positions – A Brief History of Early Gender and Trade Activism versus Trade Liberalization
Beginning in the 1980s and extending to the present, a significant proportion of gender/feminist scholars has taken an antagonistic approach to neoliberal economics and to institutions and networks perceived as neoliberal. The development of this perspective took place during the same era that saw the ascendancy of the institutions and economic and political philosophies later known as neoliberal. This antagonism has extended to globalization, free trade, and international organizations involved in trade issues, such as the WTO. As a member of the WTO Secretariat noted: ‘[During the late 1990s] … the debate … was … very sharp. It was basically anything done in trade or WTO is bad for gender (i.e., women).’Footnote 91 This meant that very little dialogue was possible at all for some time between women’s interest groups and the WTO, since women’s interest groups tended generally to oppose liberalized trade, while the mandate of the WTO was to promote it.
This clash produced important results: first, the resistance of a significant proportion of women’s interest groups to engaging positively with the WTO in order to build an organization more amenable to the representation of women and women’s interests; and second, the expectation of WTO personnel, trade negotiators, etc. for a period of time that anyone doing work on gender and trade must be in principle against free trade and therefore the existence of the WTO. Regardless of the merits and the relatively extreme positions of either side, this conflict hindered dialogue and increased the difficulty of representing women and women’s interests within the WTO.
Where did it all start? Many point to the Canadian context, where the National Action Committee on the Status of Women (NAC), argued that the 1988 Canada–US Free Trade Agreement (FTA) would impose the greatest costs upon those ‘most disadvantaged in the labour force’.Footnote 92 Given the structure of the Canadian economy in the mid-1980s, these would predominantly have been women. In the event, the Conservatives were re-elected in Canada, the FTA was ratified, and the NAC’s government funding was cut by more than 50 per cent.Footnote 93 Even so, as Bashevkin states, the NAC ‘identified linkages between free trade … and the lives of Canadian women’ that ‘might have been ignored without NAC’s intervention’Footnote 94 and that ‘worked to articulate a feminist perspective on free trade’.Footnote 95 Moreover, the NAC’s experience with the Canadian government became a very important influence in persuading the Mexican women’s group Mujer a Mujer to join the NAC in opposing the North American Free Trade Agreement (NAFTA).Footnote 96
In the American context, from 1990 to 1994, the Women’s Alternative Economic Network (WAEN) opposed NAFTA and the nascent WTO, and by 1997 Women’s EDGE had arisen in opposition to the WTO and trade liberalization.Footnote 97 Their opposition was framed in terms that recalled those used by the NAC in opposition to the Canada–US FTA.Footnote 98 Further, gender and trade advocates participated in the Mexican Action Network on Free Trade (RMALC) coalition against NAFTA.Footnote 99 Women’s NGOs were also involved in the successful broad-based civil society efforts against the Multilateral Agreement on Investment (MAI) in 1998,Footnote 100 against ‘fast-track’ authorization in 1997 for the Clinton Administration to extend NAFTA membership,Footnote 101 for a ‘social-labour declaration’ at the December 1998 Mercusor summit,Footnote 102 and against the proposed Free Trade Area of the Americas (FTAA).Footnote 103 In the context of opposition to the FTAA, 200 women’s rights activists from 35 countries met in April 1998 in Santiago, Chile, for the Alternative Women’s Forum at the People’s Summit of the Americas.Footnote 104 Finally, gender and trade advocates were involved in opposition to the 1999 WTO Ministerial in Seattle. The ‘People’s Assembly’ held on 29 November 1999 included a session titled ‘Women Say No to WTO!’Footnote 105
Steinkopf Rice’s analysis identifies key themes advocated by gender and trade organizations that support this contention: gender equality in market structures, alternatives to free-market capitalism, bottom-up trade policies, networks, accountability through gender-specific measures, greater global/local cohesion in policies, and the democratization of decision-making processes.Footnote 106 Each of these themes is critical of neoliberalism or assertive of the need for gendered trade and economic analysis. More than this, Steinkopf Rice shows that the nascent gender and trade movement of the late 1980s and 1990s had developed to become a ‘global movement’ by the mid-2000s. Her research records twenty-one distinct ‘gender and trade advocacy groups’Footnote 107 worldwide, of which thirteen were in the global north, but seven were in the global south, and one was entirely internet-based.Footnote 108
The challenge, however, is that this movement, developing for over twenty years, had taken shape during the same years in which the WTO had first sought to broaden its engagement with civil society. Thus, effectively, two contrary institutions, path-dependent not only in their institutional composition but in their knowledge production, met in the late 1990s and 2000s. One was largely committed to the neoliberal programme by means of trade liberalization, the other deeply antagonistic towards neoliberalism. Regardless of the merits of the arguments, the development and meeting of these oppositional forces made progress towards the representation of women and women’s interests particularly difficult to achieve within the WTO. Paradoxically, because the WTO was the single multilateral governing institution for world trade, the same antagonism towards neoliberalism that had produced foundational insights of gender and trade analysis also produced an environment for interaction with the WTO that militated against the adoption of the insights within global trade governance. This was mostly because in many cases those who advanced the insights of gender and trade analysis were opposed to the very existence of the WTO and its body of principles and rules. In such a case, where to begin a dialogue, let alone a negotiation? It was impossible.
Thus, although the antagonism that contributed to this disjuncture was legitimate, essential, and valuable, it came with costs. As Nager and others warned in 2002, ‘constructing women as universally exploited by global capital and neoliberal policies obscures the ways in which gendered subjects, in particular historically and geographically specific places, engage in complex and contradictory experiences of, and in response to, global processes’.Footnote 109
4.5 International Law
4.5.1 Reason 5: The WTO Dispute Settlement System as Lex Specialis – Implications for Women’s Rights as Human Rights
WTO dispute settlement operates as lex specialis, a specialized sub-system of law occupying a distinct place in the interrelationships of international law. This appellation is the subject of an extended controversy in international law literature known as the Marceau–Pauwelyn debate. To simplify, Marceau argued that the dispute settlement mechanism of the WTO is lex specialis, whereas Pauwelyn argued that it constitutes treaty law operating normally under the rules of public international law.Footnote 110 However, the stronger arguments lie with Marceau’s understanding that WTO dispute settlement is lex specialis. This is of significance to the representation of women and women’s interests because it negates, within the context of the WTO, much of the effectiveness of the strategy of identifying women’s rights with human rights, which has been prominent since the advent of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)Footnote 111 in 1980.
The question of lex specialis is crucial because, in international law, ‘lex specialis derogat generalis’ – ‘specialized law derogates from general law’.Footnote 112 This means that in cases of conflict, the provisions of the specialized system take precedence over general treaties. Moreover, ‘lex posterior generalis non derogat priori specialis’ – ‘later general law does not derogate from prior special law’.Footnote 113 This is an exception from the norm under general international law that, in cases of conflict, law created later takes precedence over law created earlier.
For Marceau, the WTO treaty defines both the applicable law and the jurisdiction and competence of panels with reference to the WTO agreements. As she states, ‘specific rights and obligations, specific remedies and a specific dispute settlement mechanism are mandatory and countermeasures have been regulated, [hence the] WTO can be seen as having set up a system that contains a specific applicable law, a lex specialis system’.Footnote 114 Since the WTO Dispute Settlement Understanding (DSU) is a lex specialis system, international human rights treaties cannot be invoked in a WTO or Appellate Body panel to justify the violation of a WTO obligation, although the contradiction can be highlighted. That is to say, the WTO and Appellate Body panels are not empowered to find that a human rights violation, as such, justifies the violation of a WTO obligation.Footnote 115 This means that the identification of women’s rights with human rights cannot be a directly effective legal strategy for achieving the representation of women and women’s interests at the WTO.
This is significant because the definition of women’s rights as human rights has long been a strategy of women’s organizations and accepted as fact by many. As Dorsey notes, it can be traced at least to the advent of CEDAW in 1979, and has been a developed, coherent, and successful strategy for the advancement of women’s rights since the 1993 World Conference on Human Rights at Vienna, the 1994 International Conference on Population and Development at Cairo, the 1995 World Summit on Social Development at Copenhagen, and the 1995 Fourth World Conference on Women at Beijing.Footnote 116
At a basic level, the structures exist in international law to facilitate and motivate the incorporation of gender concerns within the WTO. As Table 4.1 shows, a number of international agreements and conventions prohibit discrimination based on gender and are supported by the requirement of the 1969 Vienna Convention on the Law of Treaties (VCLT) to ‘interpret in good faith’.Footnote 117 As former Director-General Lamy noted, ‘There is a clear consensus: all WTO member governments are committed to a narrower set of internationally recognized “core” standards – freedom of association, no forced labour, no child labour, and no discrimination at work (including gender discrimination)’.Footnote 118 The problem is that the agreements in Table 4.1 do no more than prohibit discrimination based on sex/gender; they impose no positive requirement for action. Further, they do not sway the argument concerning lex specialis from Marceau’s position to that of Pauwelyn. WTO panellists and Appellate Body members remain barred from altering WTO agreements and from determining anything more than that an insoluble conflict exists between the obligations of a given state as a WTO member under WTO law, and the same state’s obligations under international law that is not jus cogens.Footnote 119
| The Charter of the UN |
| The Universal Declaration of Human Rights |
| The International Covenant on Economic, Social and Cultural Rights |
| The International Covenant on Civil and Political Rights |
| The Convention for the Elimination of all forms of Discrimination Against Women |
| The European Convention for the Protection of Human Rights & Fundamental Freedoms |
| The American Convention on Human Rights |
| The African Charter on Human & People’s Rights |
| The Protocol on the Rights of Women in Africa |
There is no parallel amongst other institutions of global economic governance to the lex specialis DSU of the WTO. Even the UN Convention on the Law of the Sea (UNCLOS) does not comprehend a mechanism for dispute settlement as robust, strong in compliance, or wide in its reach as the WTO Dispute Settlement Mechanism (DSM) (when operating as intended – i.e., prior to its present crisis). For their parts, neither the IMF nor the World Bank incorporates a robust, legalistic mechanism for dispute settlement; nor do they meet Marceau’s criteria to be considered lex specialis, as described above. Indeed, there is no other institution of global economic governance that can be considered lex specialis and that combines a mechanism for dispute settlement as robust and extensive as the DSM of the WTO. This makes the WTO institutionally and structurally resistant to human rights discourse to a greater degree than its peer institutions of global economic governance, and therefore to the representation of women and women’s interests (particularly as women’s rights) in a way that is stronger and more severe than any other such institution.
4.5.2 Reason 6: WTO Law Is Primarily Hard Law
WTO law is primarily hard law, which necessarily increases the difficulty and perceived risk of introducing any reform beyond that of any organization comprised to a greater degree of soft law. Following Abbott et al., Davidson argues that law, whether hard or soft, consists of rules that regulate behaviour in society, a mechanism for compliance, and a mechanism for the settlement of disputes.Footnote 120 According to Davidson, the distinction between soft and hard law lies within these criteria and is a gradation between the binding and non-binding nature of rules, their precision or imprecision, and the settlement of disputes by a more judicial or more diplomatic model.Footnote 121 Similarly, Abbott, Keohane, and others define a gradation between soft and hard law in terms of the binding nature of the obligation, the precise nature of the rule, and the diplomatic or judicial nature of the parties to which the authority to implement, interpret, and enforce the rules is delegated.Footnote 122 The WTO agreements are considered primarily hard law because they detail their terms and obligations very precisely, they are binding upon WTO members with relatively little flexibility of application or interpretation, and they are enforced by a robust, judicial, dispute settlement process with clear sanctions for contravention. In terms of Davidson’s gradation, WTO law is far closer to ‘binding’, ‘precise’, and ‘judicial’. It is difficult to experiment with reform in a hard-law structure, since all members know that any hard-law reform must entail a clear and enforceable commitment. This means hard-law reform is inherently risky and makes it far more difficult to convince WTO members to introduce initiatives such as gender mainstreaming.
By contrast, APEC was able to incorporate gender mainstreaming throughout its policy initiatives fundamentally because its soft-law structure made it possible to do so. The recommendations from the 1998 APEC Ministerial Meeting on Women are illustrative of the soft-law nature of APEC gender mainstreaming commitments. For example, APEC is ‘strongly urged’ and ‘recommendations are submitted to Leaders’ toward ‘integrating women into the mainstream of APEC processes and activities’. The recommendations were the following: to ‘recognize’ gender as a cross-cutting theme in APEC; to ‘place a high priority’ on the collection of sex-disaggregated data; to ‘implement gender impact analysis of policy, program and project proposals as an integral component of APEC decisions, processes and activities’;Footnote 123 to ‘place a high priority’ on the development of further studies concerning the impact of financial and economic crises upon women; to ‘accelerate the process’ of integrating women in the mainstream of gender processes and activities; to ‘promote and encourage’ the involvement of women in all APEC fora; and to ‘ensure’ that the recommendations be implemented and that APEC members be accountable for results.Footnote 124
These were important initiatives of significant potential that nevertheless were soft law; framed in the language of commitments, they actually committed APEC members to very little. Only the recommendation to implement gender impact analysis mandates action, and the action in that case is further study. Moreover, each recommendation requires only that each APEC member adjust policy in the required direction to their own satisfaction. This is, however, no disparagement. Exactly where they do not require a policy result, even when it is within the power of APEC members to do so, is where they make it easier for members to agree to the recommendations. In this way, the representation of women and women’s interests was made legitimate as a topic of discussion and negotiation within APEC. This constituted a meaningful advance for women within APEC and was achieved precisely because the soft-law nature of the recommendations allowed each APEC member flexibility concerning the extent and scope of its commitment. In the case of the WTO, similar progress towards ‘gender mainstreaming’ has proven much more difficult to attain. To a significant degree, this is because WTO agreements tend towards hard law, are made harder to attain by the requirement for consensus, and carry a greater risk for the members/contracting parties.
4.6 Conclusion
In summary, the six reasons describe how the institutional structure of the WTO, as well as the nature of its interactions with civil society and the wider framework of international law, have made it such a difficult case for the representation of women and women’s interests. Taken as a whole, they provide an understanding of why the WTO is resistant to the representation of women and their interests during an era in which gender mainstreaming has come to be widespread within institutions of global governance.
However, as developed by Fabian,Footnote 125 within these reasons lie clues to how the WTO can overcome its institutional resistance. Specifically, the hybridization of soft law and hard law can provide the openness, flexibility, and risk reduction necessary to introduce policies, declarations, and agreements that advance the representation of women and women’s interests.Footnote 126 Equally, Aid for Trade can provide a locus for policy innovation and research towards the same end,Footnote 127 and WTO declarations and initiatives since 2017 give hope that the WTO Secretariat can take a more active role in researching measures to represent women and their interests through trade governance.Footnote 128
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