An Analysis On Participation Right Of NGOs Of The WTO

The Participation Right of NGOs in the WTO is a new but challenging legal issue. Before Uruguay Round, GATT, the predecessor of the WTO is firmly defined as"member driven"agreements, which deny the participation right of NGOs completely. Only after establishment of the WTO, does Marrakech Agreement allow the WTO consult with NGOs, which provides the legal basis for the participation of NGOs. As the civil society becomes stronger, NGOs are increasingly unsatisfied with the superiority of trade value pursued by the WTO. They stand for public interests and minority interests, aggressively fight for the"Voice Right"in the WTO. If the protests held by NGOs are outward force pushing forward the reform of the WTO, the need for sustainable development is the inner cause for transparence and participation reform. When WTO rules have been treated as the legal basis to allocate the interests of different peoples around the world in fields of trade, investment, intellectual property, environmental protection, competition and so on, the"democratic deficiency"of the WTO, which is operated on"club model", has been clearly unveiled. The issue of NGO's participation right comes to light right in this situation, and constitutes a critical element in deciding the legitimacy and democracy of the institution. If solved properly, the sustainable development of the WTO will be ensured.Therefore, the thesis makes a detailed analysis on whether NGOs should have participation right in the WTO, the route of participation and the legitimacy of participation.The thesis is divided into six chapters, which adds up to 240,000 words. The first two chapters raise the questions, what is NGOs'participation right in the WTO, and what are the necessities for their participation. Then, the constituency and legitimacy of NGOs'participation are analyzed in Chapter 3, 4 and 5. Chapter 6 draws a conclusion after theoretical and empirical studies in former chapters.Chapter 1 is the cornerstone of the thesis, which introduces the definition, status of NGOs and scope of participation right. This chapter first compares definitions of NGOs in different international conventions and legal documents, and summarized the requirements and characteristics of NGOs as commonly recognized by international community. The differences between NGO and transnational civil society is defined here as well. Participation Right is another controversial legal term. The recent evolvement of participation right in international relations, breaking the limits of human right or political right nature, but entrusted it with a democratic entitle. And more importantly, the ratification of certain conventions on environmental protection enlarges the scope of participation right, which extends its range from policy-making to legislation, execution and litigation. Chapter 1 also describes the impacts of recent development of international policies on NGOs'participation, which constitutes the background of the research. First, the jurisdiction of WTO is enlarged from trade area to social value area, which requires the WTO listen to civil society's opinions, who stands for social value. Secondly, the rapid development of civil society provides material basis for the"third department"to participate in legislation, execution and enforcement of international rules. Thirdly, social law is separated from public law and private law, provides new arena to solve the transnational social problems. And the last but not the least, the democratic deficit encountered by the WTO also requires more democratic input through participation of civil organizations.Chapter 2 focuses on the necessity of NGOs'participation in WTO. From the perspective of cost-benefit, NGOs'participation will enhance the efficiency and legitimacy of international law. Numerous binding trade rules are adopted with the assistance of NGOs, which rectifies the deficiency of trade rules drafted by the International Governmental Organizations. NGOs also help interpret existing trade rules, clarify ambiguities, and fill the gaps, so as to promote the international trade. Furthermore, as"friends of courts", NGOs can provide expert opinions to international courts, and assist in the running of international judicial procedures. Apart from these, NGOs may enhance the democracy of international trade rules as well. The involvement of NGOs in execution can make the rules de-politicalized. And they represent non-trade organizations, fight for the interests of trade stakeholders, which changes the potential discriminatory nature of the WTO.Chapter 3 researches on NGOs'participation in policy-making process of the WTO. Several relevant provisions are analyzed first, followed by the introduction of participation manner of NGOs. Actually, the articles directly relating to NGOs'participation are rare, but several provisions under sub-agreements indirectly refer to their participation. As the collecting bond between NGOs and the WTO, the Secretariat allows qualified NGOs attend each Ministerial Meeting from Doha Round. During the Ministerial Meeting, the Secretariat also offers assistance to convene symposia and provides daily briefs for NGOs. Most of the members oppose to give more participation to NGOs. And theories relating to NGOs'participation disagree with each other. Scholars against NGOs'participation emphasize the statism of international law, and treat the WTO as a Club-Model organization. Any non-member shall not be invited into the WTO; otherwise, NGOs will participate twice in domestic and international affairs. So the WTO shall insist on the principle of"exhaustion of democratic right domestically", denies any types of participation by NGOs. While scholars with individualism opinions impugn on the WTO's democratic deficit as the WTO is too far away from ordinary people, which makes the rules lack of legitimacy. So this Chapter will compare Regulatory Freedom Theory under statism with Efficient Market Theory and Trade Stakeholder Theory under individualism, and considers which theory shall be adopted by the WTO for future development.Chapter 4 analyzes NGOs'participation in dispute resolution process of the WTO. The Dispute Resolution Mechanism has been applauded as the"pearls in the crown". As the de facto juridical branch of the WTO, the participation in DSB also relates to the constituency of subjects of the WTO. Currently, NGOs enter into the judicial procedure of the WTO through"Amicus Curiae". The Appellate Body have established a series of procedures allowing NGOs submit their opinions without solicitation since Shrimp-Turtle case, which arouse arguments of members. Chapter 4 mainly engages in case studies, through the reading of Shrimp-Turtle case, UK Steel case, EU Asbestos case and the recent Brazil Retreated Tyre case, the legitimacy of Appellate Body's handling manner on unsolicited Amicus Curiae Briefs is analyzed. After interpreting relevant articles of DSU through the customary method of treaty interpretation adopted by Vienna Convention, the thesis opined as:More judicial participation of NGOs in WTO is free from impunity, but the Appellate Body errs in usurping political organ's legislative power through judicial activism, incorporating social value into the WTO with illegitimate manner, and violating due process principle when handling NGOs'briefs.NGOs'participation in international community is not a unique phenomenon for the WTO. As potential competitions for more fields and authorities among different IGOs exist, and civil society tries to using the"regime shifting"strategy to sell their social value to NGO-friendly IGOs, therefore, Chapter 5 takes a comparative study on NGOs'participation in different IGOs, such as UN, World Bank, OECD or regional trade organizations, expecting to give some advices to the WTO. These IGOs all encounter the same"democratic deficit"problem as the WTO, and most survive the pressure from civil society. As different IGOs entitle different participation to NGOs, they are paid off differently. Chapter 5 first studies NGOs'participation in other IGOs'policy making and how these IGOs regulate NGOs behaviors, then continues to study NGOs'participation in judicial process or enforcement mechanism. It's worthy mentioned that the participatory route shall not be copied directly even from similar trade organizations. For example, the judicial participation right under EU regime includes participation rights both as non-disputing party and disputing party. But the latter shall not be introduced into the WTO. To adopt the individual litigation right in the WTO, certain conditions shall be met: the economy, culture, and social values of the member states shall be converged and integrated further; the WTO shall become a new legal order as the EU, and the WTO rules shall have direct applicability to the nationals of the member states.After analysis of above five chapters, Chapter 6 summarized as follows. First, the rules relating to consultation with NGOs under WTO shall be further completed, so as to provide legal basis for NGOs'participation. Secondly, the Panel and Appellate Body shall maintain judicial constraint, avoid judicial legislation. Thirdly, the imbalance of distribution of NGOs shall be noticed, and the elements of representation, fairness and professionness shall be taken into account. More resources and opportunities shall be distributed to southern NGOs. Fourthly, the WTO may follow other IGOs'experiences on regulating the behavior of NGOs. The last but not the least, China as the most influential developing country under the WTO, shall respect the tendency of NGOs'participation in global governance. Chinese government shall assist in developing the local NGOs, allowing local NGOs to play positive role in global trade governance.To sum up, NGOs will continue to function and push for more participation in international law. The resistance and protests by NGOs to the close nature of the WTO have seriously hampered the negotiation of new issues, and taken away people's confidence and faith on WTO. As their participation has been an unavoidable trend, WTO shall conform to the trend, and find a systematic and reasonable way to consult with NGOs to enhance its democratic legitimacy and ensure a sustainable regime development.