Actioning Inclusivity: the WTO’s TPRM and Indigenous Rights
Geothermal, Te Puia - A Māori owned enterprise / tourist attraction in Rotorua, Aotearoa New Zealand.
OVERVIEW: TRADE POLICY REVIEW MECHANISM
The Trade Policy Review Mechanism (TPRM) [1] originated from the Uruguay Round and was officially established in 1994, becoming a fundamental function of the World Trade Organization (WTO). It aims to enhance transparency in Members' trade policies and practices to facilitate the smooth functioning of the multilateral trading system. All WTO Members undergo reviews at varying frequencies, determined by their share in world trade, with review cycles now every three, five, and seven years.
The Trade Policy Review Body (TPRB) conducts reviews. Each review yields two documents: a policy statement by the reviewed government and an independent report by the WTO Secretariat, published along with the TPRB Chairperson's Concluding Remarks.
The objectives of the reviews are to enhance transparency and understanding of trade policies, improve the quality of debate, enable multilateral assessment of policies, and encourage compliance with WTO commitments. These "peer reviews" provide insights into a country's policies and offer feedback on its performance.
As a result of the focus on Gender and Trade, some members have included questions relating to another member's trade and gender policies. WTO members could take a similar approach to increase transparency around its members' trade policies and practices concerning Indigenous Peoples' rights and economic well-being.
CONCEPT
OpinioNative proposed incorporating questions concerning the rights and economic well-being of Indigenous Peoples in the TPRM in discussion with New Zealand's Permanent Mission to Geneva after the WTO Public Forum in 2022.
In Stoddart-Smith, C. & Schwartz, R. (2023). "Trade and Sustainability" report commissioned by INDIGI-X., the authors expanded upon this idea. A copy of that report is available here.
Advancing this advocacy, OpinioNative posited the idea as part of the discussion between New Zealand's Māori delegation and the WTO Director General, Dr Ngozi Okonjo-Iweala in the margins of the 2023 Public Forum. In particular, we emphasised the potential of the TPRM to capture insights and pinpoint disparities concerning Indigenous participation and inclusion in trade and trade-related policy, thereby positioning the TPRM as a potentially actionable facet of the WTO's sustainable and inclusive trade agenda.
The widespread endorsement of the United Nations Declaration on the Rights of Indigenous Peoples by WTO members, coupled with the incorporation of references to Indigenous Peoples in various trade agreements and recent WTO joint statement initiatives, indicates a timely juncture to transition from ambition to action in fostering Indigenous Peoples inclusivity in trade. [2]
By including questions related to Indigenous Peoples in the TPRM process, the WTO Secretariat could ensure that the rights, responsibilities, and obligations pertaining to Indigenous Peoples are adequately considered and addressed by WTO members in their trade policies and practices.
It is proposed that such questions could be integrated across the TPRM process [3] as follows:
Information Collection
When preparing the detailed country questionnaire, the Secretariat should look to introduce specific sections or questions focused on Indigenous Peoples' rights and economic well-being.
The Secretariat could ensure it develops appropriate questions by establishing an informal Indigenous Working Group comprising Indigenous representatives from various geographic areas to reflect the diverse experiences of the world's Indigenous Peoples.
Indigenous delegates from New Zealand, Canada, and Australia broadly supported the concept of an informal working group.
When the member under review responds to the questionnaire, they should elucidate how their policies and practices impact Indigenous Peoples' rights and economic well-being and demonstrate that they have actively engaged with Indigenous Peoples in developing their responses.
The members' responses must reflect the plurality of views and experiences of the diverse Indigenous Peoples in its territories as accurately and authentically as they give them.
Visit to the Capital
During visits to the member's capital, the Secretariat should expand its consultations from private enterprises and research institutes to include consultations with Indigenous communities and organisations, supporting the WTO's inclusivity objectives.
The member under review should facilitate such consultations and, as noted above, must ensure broad representation of Indigenous voices during Secretariat visits. A failure to do so would undermine the inclusivity objectives of the WTO.
Review Meeting
The Secretariat should emphasise areas where Indigenous rights intersect with trade policies during discussions of the preliminary draft of the Secretariat report.
The member under review should be encouraged to discuss its policies and practices regarding Indigenous Peoples, provide opportunities for Indigenous representatives to participate and address any questions or concerns raised.
Discussants and Observers
The Secretariat should guide the discussants to incorporate Indigenous issues in their main points for the review meetings, including efforts made by members to implement the UN Declaration.
Acting independently, discussants should pose relevant questions regarding protecting and promoting Indigenous Peoples' rights and economic well-being under relevant domestic or international human, economic and environmental instruments and bilateral or plurilateral trade agreements.
Questions in Advance
When circulating the report and the government policy statement before the review meeting, the Secretariat should highlight sections related to Indigenous rights and economic well-being to guide questions from members.
Members should be encouraged to submit written questions in advance to inquire about the member's policies and actions regarding Indigenous Peoples' rights and economic well-being.
Publication of Documents
In publishing the report post-review, the Secretariat should dedicate a section or highlight Indigenous issues to ensure they gain attention in public discourse.
The member under review should ensure their policy statement comprehensively covers Indigenous policies and engagements as a standard part of their documentation.
Introducing questions and concerns about Indigenous Peoples' rights, interests, duties, and responsibilities at these stages would ensure they are consistently addressed throughout the TPRM process, promoting transparency and accountability.
The types of questions that the WTO Secretariat could consider include:
To what extent do the member's trade policies consider the rights, interests, duties, and responsibilities as set out in the UN Declaration on the Rights of Indigenous Peoples?
Are there specific trade agreements or policies to which the member is a party that impact Indigenous Peoples rights, interests, duties and responsibilities, and if so, how?
What measures or safeguards exist in those trade or related agreements to protect the specific concerns of Indigenous Peoples?
Similarly, the types of questions that WTO Members could consider include:
What engagement mechanisms exist to engage with Indigenous communities and ensure their free, prior, and informed consent when formulating trade policy and entering trade agreements?
How do the member's trade policies ensure the economic well-being of Indigenous Peoples?
Are there provisions in the member's trade agreements or general trade policy that ensure trade practices do not infringe on the lands, resources, rights, interests, duties, and responsibilities of Indigenous Peoples?
What steps are in place to ensure the equitable distribution of benefits derived from trade to Indigenous Peoples?
A POSITIVE STEP TOWARD INDIGENOUS INCLUSIVITY IN TRADE DIALOGUE
Some WTO members resist Indigenous Peoples’ inclusion in trade law and policy. This attitude results from Indigenous Peoples rights having been developed through the United Nations, while trade policy was developed through the WTO. However, there is growing recognition of the parallels between the UN and WTO and greater acknowledgement that the UN Declaration is not a standalone human rights instrument but rather an instrument that comprehensively covers the unique cultural, political, economic, and environmental rights of Indigenous Peoples. [4] Unlike other marginalised groups such as women, people with disabilities, MSMEs and rural and remote populations, Indigenous Peoples have sovereign rights - despite those rights often not being formally or only partially recognised - attached to lands and resources that provide a different set of circumstances for their inclusion in trade by comparison.
As such, there are several reasons why WTO members should view the inclusion of questions related to Indigenous Peoples' rights in their Trade Policy Review (TPR) as a positive rather than a negative:
Objectives of the TPRM
The main objectives of the TPRM are to increase transparency, enhance understanding of each member's trade policies and practices, and improve the quality of public and intergovernmental debate on trade issues. Members can demonstrate transparency and commitment to broader social, cultural, environmental and economic concerns beyond trade practices by addressing issues around Indigenous Peoples' rights, interests, duties, and responsibilities.
Broader Economic and Developmental Context
A Trade Policy Review focuses on a member's broader economic and developmental needs, not just their trade policies. Indigenous communities can significantly enhance a country's economic and social fabric. Recognising their rights and roles aligns with the holistic approach of the TPRM and the WTO's commitment - via its membership - to action a sustainable and inclusive trade agenda.
Enhancing Credibility and Cohesion
Addressing Indigenous Peoples' rights can enhance the credibility of the reviewed member. By demonstrating that they are considering the rights and well-being of Indigenous communities, they can build trust with Indigenous Peoples and help build cultural cohesion within the international community.
Peer Reviews
The TPRM operates as a "peer review," where other WTO members evaluate the trade policies and practices of the reviewed country. Addressing Indigenous issues can set a positive example for resistant countries, leading to constructive discussions and mutual learning.
Non-confrontational, Non-legalistic Basis
The TPRM offers a non-confrontational and non-legalistic forum for members to discuss their policies. Members can share their experiences, challenges, and solutions without legal repercussions. Moreover, the TPRM cannot serve as a basis for dispute settlement procedures. Thus, members should view the inclusion of questions about Indigenous rights as a platform for open dialogue.
Broader Benefits of the TPRM
The TPRM has helped illuminate overlooked areas of WTO obligations. By incorporating discussions on Indigenous rights, members can uncover aspects of their trade practices that will benefit from more attention, thus further fulfilling the objectives of the TPRM and the WTO's inclusive trade agenda.
CONCLUSION
Members of the OECD are considering a similar Indigenous Economic Well-being measure as part of its OECD member reviews. As the OECD views itself as "upstream" from the WTO, this could serve as a pilot or reference point for the proposed inclusion of Indigenous Peoples' rights and economic well-being in the WTO's TPRM.
To shift the dial on Indigenous Peoples' inclusion in trade, WTO members should use existing processes to identify where different members are progressing and where more focus is needed. Doing so would also demonstrate that the commitment to a sustainable and inclusive trade agenda is genuine and not merely performative.
FOOTNOTES
[1] Trade Policy Reviews: Brief Introduction <https://www.wto.org/english/tratop_e/tpr_e/tp_int_e.htm>; Trade Policy Reviews: Ensuring Transparency < https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm11_e.htm>
[2] The vast majority of WTO members have already endorsed the WTO at the UNGA in 2007, and others later in 2010. Unsurprisingly, most WTO members fail to grasp the relevance of the UNDRIP to trade policy, which creates a range of challenges for the recognition of Indigenous rights in WTO law and policy. However, the growing use of exceptions and carveouts in bilateral and plurilateral trade agreements, as well as language tabled by members in WTO documents such as the JSI on Electronic Commerce signals a slow shift to the convergence of Indigenous rights and trade.
[3] Improving WTO Trade Policy Reviews, Appendix B: A WTO Description of the Trade Policy Review Mechanism. Institute for International Economics. pp. 61-72. <https://www.piie.com/publications/chapters_preview/60/appbiie2512.pdf>
[4] Puig, S. (2021). At the Margins of Globalization: Indigenous Peoples and International Economic Law (Globalization and Human Rights). Cambridge: Cambridge University Press.
