Part I - The WTO and Gender Equality

2 Gender-Responsive WTO Making Trade Rules and Policies Work for Women*

Anoush der Boghossian

2.1 Introduction

Empowering women can be the most rewarding action any government can take.¹ This resonates in the words of Rosine Bekoin, a cocoa producer from Ivory Coast: ‘I used to think I had to wear a wrap, have a baby on my back and cook for my husband. I used to beg him for money. Now we make a budget together and I’m afraid of nothing because I know how to manage my money. I am stronger. I am a leader of many people now and know I can do things on my own.’²

The more women grow economically, the more societies and economies grow. Trade can foster their empowerment by advancing gender equality through the development and implementation of gender-responsive trade policies³ as well as by implementing WTO agreements using a gendered lens.⁴ Trade rules can impact women positively only if they are implemented to respond to the specific roles and needs of women in society and in the economy.

The WTO and its members support women’s economic empowerment through various endeavours, including the Informal Working Group (IWG) on Trade and Gender established by the WTO in September 2020. Through the IWG, trade and gender related issues have been institutionalised at the organisation.

However, before achieving this institutionalisation, the WTO had evolved from a gender-blind⁵ institution to a gender-aware⁶ one in only five years. Following the General Agreement on Tariffs and Trade (GATT) and with the establishment of the WTO in 1995, trade rules did not integrate gender issues, making the WTO gender blind. Until 2016–2017, gender was not considered a part of the WTO mandate. This led the organisation to exclude the issue from all its discussions, operations, and negotiations, although WTO members have mentioned trade and gender measures in their trade policy review reports in the last decades. No research was conducted on this issue,⁷ and no member of staff in the WTO Secretariat was working on it. There were no dedicated fora within the WTO. However, this changed in September 2020 with the establishment of the IWG on Trade and Gender.⁸

In 2017, a total of 118 WTO members and observers launched an informal declaration in the margins of the 11th Ministerial Conference in Buenos Aires. Members chose the informal path and used it with the purpose of integrating gender issues into the WTO, a discussion which was non-existent at the time. The same year, and as part of the negotiations on Services Domestic Regulation, Canada introduced the first gender-equality language in a WTO negotiating document. On 2 December 2021, sixty-seven members adopted the Services Domestic Regulation⁹ and for the first time added a gender-equality provision to a WTO plurilateral agreement. This provision prohibits gender discrimination when authorising the supply of a service.

This chapter is structured as follows. Section 2.2 underscores the importance of women in trade and establishes that women are key drivers of economic and sustainable growth, and that trade can support this role. Section 2.3 explores how the WTO evolved from a gender-blind organisation to a gender-aware one, looking at its various mandates and the objectives of the WTO rules. Section 2.4 analyses whether the WTO has truly transformed into a gender-aware international organisation. Section 2.5 looks at how trade policy can expand and enforce the capabilities for women in global trade, and how it can create decent working conditions for women. Section 2.6 analyses the issue from a legal perspective and explores the link between human rights, women’s economic empowerment, and trade law. Section 2.7 provides concluding remarks. In essence, the chapter will link human rights, women’s economic empowerment, and trade law and explore how WTO agreements can support gender equality.

2.2 Women Are Key Drivers of Economic Growth

Women constitute a global economic force. The more they are involved, the more economies grow: increasing women’s participation in the labour market to the same level as men’s could raise some countries’ gross domestic product (GDP) by up to 34 per cent,¹⁰ and closing the gender gap could increase countries’ GDP by an average of 35 per cent.¹¹ This analysis from the International Monetary Fund (IMF) has been confirmed in many countries. For instance, in Egypt, women represent 50 per cent of the population; many of them are educated, but they only constitute 24 per cent of the workforce. If women were better integrated into the economy, Egypt’s GDP could increase by 30 per cent.¹² Similarly, in Peru, the correlation between higher per capita income and better gender equality has been noted since 2000. As Peru has increased its per capita income, gender inequality has decreased, as measured by the gender inequality index.¹³ The massive entry of Peruvian women into the world of labour, largely due to a shift in the role of women in society, has been an important driver of growth as well as of economic and human development.¹⁴ More recently, according to the United Nations Development Programme (UNDP), limiting women’s employment could reduce Afghanistan’s GDP by an additional 5 per cent and would constitute an immediate economic loss of up to USD 1 billion.¹⁵

Women’s contribution to the economy also impacts job creation, economic diversification, innovation, entrepreneurship, poverty reduction, and development. Even if they own or lead micro and small businesses, women entrepreneurs create jobs, for themselves and often for other women. According to a WTO survey on women entrepreneurs’ knowledge gap on trade, in South Asia, East Africa, and Latin America, 57 per cent of workers employed by micro companies owned and led by women are female.¹⁶ Also, according to the survey, 50 per cent of women entrepreneurs were motivated to develop their businesses to create jobs for others and 41 per cent of women created their businesses in order to be their own bosses.¹⁷

Women tend to be more involved in the services sector, thus fostering diversification. In low- and lower-middle-income countries, women make up about 40 per cent of workers in the services sector and in upper-middle- and high-income countries, they represent almost 70 per cent of the services sector workforce.¹⁸ Some countries have included women’s economic empowerment in their new economic diversification strategies, recognising women’s key role in the economy. In particular, Saudi Arabia has undertaken ninety major human rights reforms over the past few years and women’s empowerment constitutes a large share of these reforms, focusing on promoting female employment and women’s political rights.¹⁹ As a result, over the last four years, the rate of female unemployment in Saudi Arabia has decreased by 13.9 per cent²⁰ due to the engagement of the female workforce.²¹

Women can drive innovation. Globally, female entrepreneurs are 5 per cent more likely than men to be innovative.²² Also, when trained in new technologies, they tend to use them more than men to manage their businesses.²³ In Europe, 15 per cent of innovative start-ups are founded or co-founded by women.²⁴

Women also contribute to poverty reduction as most women reinvest their income in their families. For instance, according to a survey by the WTO, in South Asia, East Africa, and Latin America, women reinvest their disposable incomes first in their business, second in their household expenses such as rent, food, education, and health, and third in the overall family income.²⁵

Women entrepreneurs are the backbone of any economy. They represent approximately 30–37 per cent (8–10 million) of all micro, small, and medium-sized enterprises (MSMEs) in emerging markets.²⁶ In Brazil, Russia, India, China, and South Africa (BRICS), on average, women represent 25 per cent of business owners.²⁷ In Nigeria, women represent 41 per cent of micro-business owners, with 23 million female entrepreneurs operating in the country. Nigeria has one of the highest female entrepreneurship rates globally.²⁸

2.3 Is the WTO Really Gender Blind?

Six hundred-odd pages of the WTO rulebook that governs international trade is gender neutral. Some would say that it is gender blind.²⁹ The WTO agreements make no explicit mention of terms such as ‘gender’, ‘gender equality’, or ‘men and women’. Despite this silence, one cannot assume that the WTO is entirely gender blind. In fact, it has an implicit legal base and an explicit mandate to work on gender equality in trade. This is discussed in the following sections.

2.3.1 An Implicit Legal Basis: The Objectives of the GATT and WTO

The Preamble of the GATT provides that trade should be ‘conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income’.³⁰ Similarly, the preamble of the Marrakesh Agreement establishing the WTO (WTO Agreement) stipulates that trade should be ‘conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income … while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development’.³¹

The concept of sustainable development was described in the 1987 Brundtland Commission Report as ‘development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.³² The Report further adds that ‘[p]overty is not only an evil in itself, but sustainable development requires meeting the basic needs of all and extending to all the opportunity to fulfil their aspirations for a better life. A world in which poverty is endemic will always be prone to ecological and other catastrophes’.³³ According to the United Nations (UN), sustainable development includes notions of inclusivity and resilience. To be achieved, inclusive and equitable economic growth, social inclusion, and environmental protection would need to be combined.³⁴ Some mistakenly interpret sustainable development as merely linked to the protection of the environment, but, as described above, it is a combination of issues that makes for sustainable development.

These definitions put women at the centre of sustainable development and directly link the WTO’s sustainable development objectives to women’s economic empowerment, giving the WTO an implicit legal basis to work on trade and gender. However, until 2016, the WTO never took the opportunity to connect gender equality with trade.

2.3.2 An Explicit Legal Basis: The Aid for Trade Initiative and the WTO Technical Assistance Plans

Gender equality has been part of Aid for Trade since its inception. The Aid for Trade initiative was created at the Hong Kong Ministerial Conference in 2005.³⁵ In 2006, the Aid for Trade Task Force composed of WTO members was set up to operationalise the initiative and frame its objectives.

The final report of the Task Force, released in July 2006 and presented to the General Council, provides that ‘Aid for trade should be rendered in a coherent manner taking full account … of the gender perspective and of the overall goal of sustainable development’.³⁶ The report stipulates that donors and partner countries jointly commit to the ‘harmonization of efforts on cross-cutting issues, such as gender equality’.³⁷ In fact, it provides an explicit and broad mandate for gender equality to be included in the Aid for Trade initiative.

Gender is thus an inherent part of Aid for Trade, with the IWG on Trade and Gender recognising its essential role in women’s economic empowerment by establishing it as one of its four work pillars.³⁸

In addition, the Biennial Technical Assistance and Training Plan 2018–2019 gave the mandate to the WTO Secretariat to develop a training module on trade and gender for WTO members and government officials.³⁹ The subsequent Biennial Technical Assistance and Training Plan 2020–2021 further confirms the integration of gender into the WTO training programmes.⁴⁰

It is interesting to note that whereas trade and gender is a plurilateral issue in the WTO, the WTO Technical Assistance Plans are adopted multilaterally within the WTO Committee on Trade and Development by all WTO members. This shows a further institutionalisation of the issue in the WTO.

2.4 Has the WTO Transformed into a Gender-Aware Organisation?

The issue of gender was first introduced into the WTO in 2016 due to the influence of non-state actors and the political impetus of former WTO Director-General Roberto Azevêdo.

WTO members formalised their relationships with non-governmental organisations (NGOs) when they established the organization.⁴¹ Article V:2 of the WTO Agreement gives a legal basis for relations with NGOs and provides that ‘the General Council may make appropriate arrangements for consultations and cooperation with non-governmental organizations concerned with matters related to those of the WTO’. In 1996, the General Council adopted the Guidelines for Arrangements on Relations with Non-Governmental Organizations, framing this cooperation.⁴² The Guidelines describe NGOs as ‘a valuable resource’ that ‘can contribute to the accuracy and richness of the public debate’.⁴³ Over the years, NGOs have influenced the agenda of the WTO. The introduction of the issues of cotton or fisheries subsidies in the WTO is a typical example of such influence. NGOs have also supported the WTO in integrating trade and gender into its work.

In 2015, the NGO Women at the Table, working on ‘structural barriers faced by women and preventing them from benefiting the world’s economic, political and social development’, created the International Gender Champions network (IGC) in collaboration with then US Ambassador and UN Director-General in Geneva.⁴⁴ The IGC is a ‘collaborative network of senior female & male decision-makers who drive systems change’ and today includes more than 300 international ‘gender champions’, including the Secretary-General of the UN, the heads of most international organisations, NGOs, ambassadors, and leaders in the private sector.⁴⁵ In order to focus its work, the IGC is organised in various thematic groups. The IGC Trade Impact Group was formed with the aim of pushing the integration of gender issues in the WTO. The Trade Impact Group is itself composed of some WTO members (developed and developing), the WTO, and other international organisations, as well as NGOs. It was created in 2017, the year of the WTO’s 11th Ministerial Conference (MC11). Taking this opportunity, the group drafted a declaration to be launched at MC11. This informal instrument was eventually presented unofficially at the margins of MC11 in December 2017 and endorsed by 118 WTO members and observers. The informal path was chosen because of the sensitivity of the issue for some members and because it was not supported at the multilateral level. In fact, the Buenos Aires Declaration⁴⁶ is a simple ‘PDF’ document without the WTO logo or any specific official WTO symbol.⁴⁷ Despite this informality, it served as a platform to introduce discussions on gender into the WTO through thematic workshops organised by the organisation, and its members and external stakeholders. After two years of discussions and exploration of the issue, members decided to institutionalise it in the WTO, by establishing the IWG on Trade and Gender on 23 September 2020.⁴⁸

Through their work within the IWG on Trade and Gender, WTO members committed to make trade work better for women and be more inclusive. They ran successful rounds of thematic discussions introducing the issue of trade and gender equality in the WTO for the first time. They designed and implemented the first work plan in the WTO on trade and gender based on four pillars: gender-responsive policy making; a gender lens applied to the WTO; research and analytical work; and Aid for Trade. They supported the introduction of gender-equality language in plurilateral trade negotiations.⁴⁹ Moreover, they further strengthened WTO members’ experience and expertise in inclusive policy making.⁵⁰ They have, in sum, institutionalised gender issues in the WTO.

In June 2022, during the WTO’s 12th Ministerial Conference (MC12), members negotiated and adopted a paragraph in the MC12 Outcome document⁵¹ recognising the importance of women’s economic empowerment and the work of the WTO on this issue, at the multilateral level. That means gender issues are now considered a part of the WTO work as a whole. Also, the Co-Chairs of the IWG on Trade and Gender released a joint statement⁵² acknowledging that the WTO’s work on trade and gender is in line with its objectives, as stipulated in its Preamble, and recognising the achievements made since the MC11 by WTO members as a basis for future work. In addition to the Interim Report establishing the IWG Group on Trade and Gender and Aid for Trade, these texts give WTO members an additional and stronger legal basis to work on trade and gender.

In parallel to this process, former WTO Director-General Roberto Azevêdo, who became an International Gender Champion in 2016, made a commitment to gender equality in trade and in the WTO Secretariat. In June 2017, he appointed the first WTO Trade and Gender Focal Point to lead this work in the organisation, who, in October 2017, launched the first WTO Trade and Gender Action 2017–2019 focusing on four key objectives: facilitating WTO members’ work on trade and gender; conducting research; delivering training on trade and gender for government officials and raising awareness on the trade and gender nexus. The WTO is currently working on the basis of its second Action Plan 2021–2026.

The WTO gender focus was therefore built in an unusual way: from total informality to institutionalisation and driven by one NGO.

2.5 How Can Trade Policies Help?

2.5.1 A Gender-Responsive Trade Policy Can Lift Obstacles Faced by Women in Trade

WTO members have mostly focused their gender-related trade policies on eighteen different categories of policy interventions.⁵³ In practice, many WTO members have focused their gender-related trade policies on providing financial and non-financial incentives to the private sector and women-owned/led MSMEs, lifting financial and procedural obstacles.

Access to finance is one of the keys to women entrepreneurs integrating into international trade. Without finance, women entrepreneurs cannot trade.⁵⁴ Lack of finance hinders their ability to cover trade-related costs such as specialised IT systems, skilled staff in customs procedures, standards compliance, packaging, trade agents, and trade finance.

Financial incentives set up by governments in the area of trade are therefore essential. In many cases, governments have established special quotas for women-owned companies to secure their access to such incentives.⁵⁵ Others have established specific ‘women’s funds’ to provide affordable finance to women-owned companies or start-up enterprises led by women.⁵⁶ Through these support programmes, governments aim at facilitating access to credit for women’s business activities, provide rural women with opportunities to access value chains, and help women to compete in regional and international markets. These incentives often take the form of credit guarantees, securities, grants, loans, or subsidised financing. Those financial schemes are often accompanied with other types of assistance for women small-scale entrepreneurs, such as with marketing or training in business management.⁵⁷

Other incentives are non-financial and can take the form of simplified industrial or business licence processes for MSMEs and female entrepreneurs, preventing women from facing approval delays motivated by gender-biased behaviours,⁵⁸ as these constitute an additional trade cost for women. Non-financial incentives also include skills training on business and financial management aiming at building women’s capacity to export and expand in regional and international markets.⁵⁹ Government could also go as far as setting up an online platform for businesswomen to market their products and support their access to international markets.⁶⁰

Moreover, Aid for Trade can lift infrastructure obstacles faced by women especially in rural areas. While the Aid for Trade Initiative helps governments to build their trade capacity, access global markets, and increase their exports, it can also support women’s economic empowerment by lifting some of the obstacles they are facing, especially with regard to trade-related infrastructure.

Lack of access to electricity can prevent female entrepreneurs or farmers from expanding their businesses, especially in rural areas. Faced with such problems, some resort to generators which increases their trade costs even further.⁶¹ Aid for Trade has been addressing this issue, especially regarding women’s needs through the creation and improvement of infrastructure. For example, Canada, an Aid for Trade donor, supports Burkina Faso in electrifying its rural areas, using solar energy. The project targets the development of businesswomen, the increase of production, the improvement of processing and storage options in specific sectors, such as onion production, and chicken and fish livestock farming, which are female-led sectors. Women’s groups were also involved in the project to ensure that it fits their needs.⁶²

However, these types of projects are still rare. Donors and partner countries have been gradually and continuously integrating gender into their Aid for Trade objectives. In 2022, 92 per cent of developing countries and 90 per cent of donors (both bilateral and multilateral) have integrated women’s economic empowerment as a priority in their national or regional development plans and objectives or trade-related development aid.⁶³ Both groups are therefore at a par, similarly to 2019, as revealed by the Aid for Trade Monitoring and Evaluation (M&E) Exercise in 2019.⁶⁴ Aid for Trade funding is also aligned with developing countries’ priorities and objectives on women’s economic empowerment, contrary to the last decade, when there was a clear disconnect between these objectives and the programmes with regard to gender. For example, when identifying constraints faced by women, four out of the six top obstacles are commonly acknowledged by both donors and recipients of Aid for Trade. These four aligned constraints are: access to finance, informal employment, access to digital services, and poor access to information.⁶⁵

2.5.2 A Gender-Responsive Trade Policy Can Create New Opportunities for Women

Some WTO members have created specific opportunities for women entrepreneurs through their trade policies. Government procurement policies can support women entrepreneurs. In fact, government procurement represents around 15 per cent of GDP in most economies and women entrepreneurs are underrepresented in this market⁶⁶ as only 1 per cent participate in it. To increase market access to government procurement opportunities for women’s businesses, some governments have set up preference schemes for women entrepreneurs. The quota allocation is on average about 20 per cent, and sometimes focuses on rural women. However, some of these quotas often include other vulnerable groups such as young or disabled people. Other countries generally prohibit gender-based discrimination in their government procurement laws when contracts are allocated. Some give preference to companies that implement gender equality or wage equality policies.⁶⁷

Governments could use the work conducted by the International Standards Organisation (ISO) on defining women-owned companies internationally to foster women entrepreneurs’ participation in their government procurement markets.⁶⁸

Trade policies can also create opportunities for women to enter the workforce. Most WTO members include women’s economic empowerment and their integration in the job market as a key priority in their national trade, investment, economic, and development strategies. They often highlight the means needed to achieve this goal. In Nigeria, for instance, the government fostered women’s participation in the construction sector, where a labour shortage was identified.⁶⁹ Similarly, in Zambia, women were encouraged to work in the male-dominated mining sector.⁷⁰ Some policies target reduction in the number of women leaving the workforce because of childbirth;⁷¹ others look at improving women’s working environment or increasing female leadership.⁷² Some members added trade objectives targeted to women’s economic empowerment, by tackling low skills in trade and addressing the restricted access of women entrepreneurs to export opportunities.⁷³ Sometimes, the objective of women’s economic empowerment is indirectly underlined by focusing on trade strategies in specific sectors where women work, such as tourism and fisheries. Often, national entrepreneurship strategies focus on specifically supporting women entrepreneurs and small businesses, including companies owned and led by women. These plans also associate greater economic opportunities for women with private sector development.

Trade policies can create export opportunities for women through training. Women entrepreneurs face a knowledge gap in trade rules and proceedings. In South Asia, Latin America, and East Africa, only 50 per cent of women entrepreneurs received training on trade generally, and only 35 per cent received training on trade regulations and customs procedures.⁷⁴ Some members have set up capacity-building programmes for female farmers to understand the Sanitary and Phytosanitary (SPS) requirements and be able to comply with them while exporting their products.⁷⁵ Through such training and policies, not only can women export their products, but they can also diversify their productions, from commodities to value-added products and gain new markets. Hence, trade can help them in scaling up their businesses through economic diversification. One example is female mango producers, who were trained by the Enhanced Integrated Framework (EIF), as they were not only able to export their raw products by complying with SPS requirements, but were also able to produce value-added products such as mango juice, jam, and dried mangoes.⁷⁶ In 2018, the Gambia reported as part of its Trade Policy Review that its policies were focusing on ‘providing access to both local and global value chains to producers with special focus on meeting the required quality and sanitary and phytosanitary standards’.⁷⁷

2.5.3 A Gender-Responsive Trade Policy Can Balance the Scale in Favour of Women by Reducing Gender Discrimination

Some trade policies have had the result of socially empowering women. Within the trade policy review in 2015,⁷⁸ and in order to foster women’s participation in its workforce, Japan announced the opening of its services sector to foreign housekeepers ‘with a view to promoting women’s participation in society, meeting their need for assistance for housework, and encouraging medium- to long-term economic growth’.⁷⁹ As a direct consequence, Japan has transformed unpaid care and domestic work into paid work.

In its procurement policy, the Swiss government has conditioned the allocation of contracts by only selecting companies that have an internal wage equality policy.⁸⁰ The government also conducted investigations to ascertain whether these internal policies were actually implemented. In 2018, following over 100 controls that were conducted, half of the companies reviewed were found to engage in no discrimination and 12.5 per cent were in violation of their own wage-equality policies.⁸¹ In fact, following these investigations, half of the companies at fault reviewed the implementation of their policies, resulting in an increase of their female workers’ wages.

Some trade policies that do not primarily target women’s economic empowerment have resulted in better working conditions for female employees, and even better social laws based on gender equality. For instance, in the Philippines, the Information and Communication Technology (ICT) and Business Process Outsourcing (BPO) sectors are booming. According to the Philippines Statistics Authority, more than 55 per cent of workers in the BPO sector are women, working in medical transcription industries, data processing, and call centre activities.⁸² This export services sector benefited from the government’s favourable trade policy (for instance, IT buildings were declared vertical economic zones). In the past, the Philippines’ labour laws prohibited women from working night shifts and in 2011, and because the BPO sector contributes greatly to the national economy and as female BPO employees were dealing with customers located in different time zones, the government abolished the prohibition and added new requirements for companies, such as sleeping/resting quarters, mandatory transport services for women doing night work, catering in particular to those with children, spaces for nursing mothers allowing them no less than 40 minutes of lactation breaks, and the inclusion of breastfeeding programmes as part of the companies’ development plans.⁸³

2.6 Applying a Gendered Lens to Trade Law: The Link between Human Rights, Women’s Economic Empowerment and Trade Law

This section examines the links between human rights, women’s empowerment, and trade law, and demonstrates how WTO rules can have a real impact on women’s lives. It will focus on two examples that demonstrate this link and also show that some of the WTO rules are grounded in women’s reality, even if it was not the initial intention of the negotiators of these rules.

The first example relates to the WTO’s Agreement on Agriculture.⁸⁴ WTO agreements can support women’s economic empowerment in agriculture and consequently strengthen food security. Women are the guardians of food security. They play a critical role in agriculture not only as subsistence farmers, but also as farm workers in export crops, suppliers, and/or vendors to informal food markets, and cross-border food traders. They are therefore key players in the domestic/local food supply chain but also in regional/international value chains.

On average, women represent 42 per cent of the agricultural labour force in developing countries.⁸⁵ In the Southern Africa Development Community (SADC) region, according to the SADC Food Nutrition Security Strategy 2015–2025, women contribute to 60 per cent of total food production and perform more than 70 per cent of agricultural work.⁸⁶ In developed countries (upper and middle income countries), female farmers represent less than 20 per cent of the female workforce.⁸⁷ In the European Union, according to Eurostat, the number of women in agriculture has grown and women manage about 30 per cent of European farms (96 per cent of farms are family run). In some other European countries, this number is close to 50 per cent.⁸⁸

Female informal cross-border traders play a key role in food security, as they mostly trade essential food products. In the SADC region, they contribute up to USD 20 billion annually to the region’s trade.⁸⁹ Through their export activities, they bring their products to places where food is scarce. In West Africa, informal cross-border traders in food products represent about 30 per cent of the regional trade.⁹⁰

Women represent two-thirds of the world’s 600 million poor livestock keepers and, according to the International Livestock Research Institute (ILRI),⁹¹ in most developing countries, more than 80 per cent of livestock products are sold in informal food markets, when alternative food sources do not exist for consumers.

Despite their essential role in agriculture, female farmers remain underpaid or even unpaid informal workers, they are excluded from training opportunities, and their access to resources and land ownership is impeded, contrary to men.⁹² Women do not have the same advantages as men in agriculture. Inter alia, they lack access to reproductive resources and inputs. In Guatemala, for instance, they lack access to seeds.

One relevant provision in the WTO Agreement on Agriculture,⁹³ Article 6.2, if applied with a gender lens, can support female farmers in accessing these essential resources. Article 6.2, otherwise known as the ‘development box’, provides flexibility to developing countries to give their poor farmers input subsidies. According to the UN Food and Agriculture Organization (FAO), if women had access to reproductive resources to the same level as men, they would increase their production by 20–30 per cent.⁹⁴ Understanding the key role women play in food security, giving them this opportunity would strengthen the fundamental right to food. In 2016, to respond to emergency situations, the Gambia used this flexibility and provided bags of fertiliser to female farmers.⁹⁵

The second example is the WTO Trade Facilitation Agreement (TFA) as it can support poverty reduction through training and by fostering women entrepreneurs’ exports. If applied with a gender lens, the TFA could indirectly support women’s skills development, thus contributing to poverty reduction.

The TFA helps WTO members to digitalise their customs procedures.⁹⁶ Such a commitment would allow women entrepreneurs to reduce their trade-related costs by avoiding face-to-face interactions with potential gender-biased customs officials that would delay processing their export permits. A 2012 United States Agency for International Development (USAID) survey showed that Indian women wait, on average, 37 per cent longer than men to see the same customs official when trading at the border.⁹⁷ As a consequence of these delays, women often compensate for their losses by imposing higher prices on their goods and thus increasing their wage gaps. In an ideal world, such a provision would have the desired effect of simplifying and helping women entrepreneurs through the maze of red tape and gender discrimination.

Using online processes could support them and prevent face-to-face interactions, as filling in a form online is less time-consuming than meeting customs officials in person in an office that can be located far from their homes. But the gendered digital divide still persists. In 2019, the proportion of women using the internet globally was 48 per cent compared to 58 per cent of men.⁹⁸ Also, when women have access to technology, it is often outdated. In addition, women face a general knowledge gap on trade rules and do not know where to find the trade-related information. Hence, to make the trade facilitation provisions fully work for women, it is important for governments to set up training programmes to enhance women’s IT skills and their knowledge of trade rules. The TFA combined with adequate policies would have a multiplier effect by allowing women to be trained and to enhance their skills, thus reducing the trade costs they face and leading to poverty reduction.

There is another provision in the TFA that can support women. The de minimis provision is actually grounded in the reality of women entrepreneurs as they tend to run smaller businesses as compared to male entrepreneurs. Article 7.8.2(d) of the TFA establishes ‘a de minimis shipment value of dutiable amount for which customs duties and taxes will not be collected’.

Various international agreements, such as the Revised Kyoto Convention by the World Customs Organization, incorporate this provision to facilitate trade.⁹⁹ It is currently also considered by WTO members in their negotiations on e-commerce in support of small businesses. In fact, this provision would be useful for women entrepreneurs engaged in exports, who are often trading small parcels given the nature of their businesses. For instance, many women entrepreneurs work in the garment and handicraft sectors, and women dominate the handicraft sector. In India alone, this sector employs more than 7 million people, most of whom are disadvantaged women.¹⁰⁰ More globally, 87 per cent of sellers on Etsy – an international e-commerce platform that sells handicraft and vintage products – are women.¹⁰¹ The platform connects 2.1 million sellers with 39.4 million buyers.¹⁰² In this sector, dealing with small parcels is a daily task. Also, many women entrepreneurs, while formally established, trade informally. They call it the ‘suitcase export’. They export small amounts of their goods to their networks abroad, mostly to friends and family, who sell their products for them. This sort of trade may grow in the context of the COVID-19 pandemic and its aftermath as the global small parcels market is expected to more than double from 103 billion parcels in 2019 to between 220 and 262 billion parcels by 2026.¹⁰³

Lastly, women entrepreneurs mostly own or lead micro-businesses. The WTO Regional Surveys 2019–2020 data shows that 46.3 per cent of them have fewer than ten employees and 27 per cent between eleven and thirty employees.¹⁰⁴ Looking at bigger firms, only 4.6 per cent of women entrepreneurs employ between 51 and 100 staff and less than 5 per cent of businesswomen employ more than 100 workers. Only 3.3 per cent of women entrepreneurs own companies with more than 100 employees. This is also the case in developed countries. For instance, in Canada, 92.7 per cent of women-owned firms employ fewer than twenty staff members.¹⁰⁵

2.7 Conclusion

After improving her skills as a cocoa farmer, Rosine Bekoin said: ‘When I started the programme, I was shy. I did not believe in myself or that I could do anything impactful. The school built my confidence. I had to re-value myself as a woman … to see myself with equal rights as men … I keep telling my daughters that education will be what sees them through in life and offers them true independence.’¹⁰⁶ For the last ten years, Rosine has been cultivating a small plot, yielding two crops annually. The next adventure for her is to build a factory, creating jobs for others and lifting her community.

Empowering women is a risk-free endeavour. As described in this chapter, women give back, either as work and income providers, often for other women, or as caretakers of their families and communities.

Trade is central to women’s empowerment, not just as an agent of economic development but also as a provider of economic opportunities. Trade policy, instruments, and rules are linked to other issues and policies that are crucial for women’s economic and social growth, such as infrastructure, education and capacity building, entrepreneurship, transport and mobility, workplace environment and safety. As seen in the chapter, trade policies can influence positive social development for women.

Sustainable development is at the centre of economic priorities, today more than ever before, and governments have realised that women are part of the answer, as they evolve from simply acknowledging it to taking action. Similarly, as this chapter has shown, the WTO is changing and is now working towards making trade work for women.

3 Advances in Feminizing the WTO

Mia Mikic

3.1 Introduction

If this book were a Twitter thread, then this chapter on ‘Advances in Feminizing the WTO’ could simply read: ‘For the first time since its establishment, the WTO is put under the leadership of a woman.’ It might continue: ‘Starting in 2021, all three global institutions responsible for trade are led by women’ (ending with an appropriate emoji 🙋♀).

However, there is much more to be said about the advances (or lack thereof) in work on recognizing the complex linkages between trade and gender, and this deserves a book chapter. This chapter was drafted while the WTO members, the Secretariat, and many interested parties, were readying themselves for the WTO MC12 planned to be held from 30 November to 3 December 2021 in Geneva, Switzerland.¹ Twenty-five years ago, during the 1st Ministerial Conference (MC1) held in Singapore, WTO members debated about, inter alia, the rationale for introducing (core) labour standards into the body of the multilateral rules governed by the (then) newly established WTO. While the Ministers dismissed such proposals,² the UN Economic and Social Commission for Asia and the Pacific (ESCAP) report (1996), dedicated to concerns related to the agenda of MC1, included a discussion on the impacts of trade liberalization on women.³ In fact, the recommendations were rather broader, encompassing: (a) further study to ensure that liberalization policies did not exacerbate existing gender inequalities; (b) systematic and periodic gender-impact assessments of liberalization policies at the sectoral, national, and international levels; (c) further study of existing gender inequalities on trade and investment policies; (d) enabling policymakers to raise these issues within the context of the WTO and other policy-making institutions; (e) setting up a committee within the WTO to examine all the issues from a gender perspective (and incorporating women’s voices on the setting up of WTO agendas); and (f) commitment of sufficient financing to a global gender equity fund).⁴ It is thus only fitting that a quarter-century and eleven ministerial conferences later, the Ministers, once they meet, will have an opportunity to deliberate and finally adopt an ambitious and progressive WTO work programme on Trade for Women. The opportunity that was, after all, missed.

This chapter takes the recommendations by Mikic and Sharma on the steps towards feminizing the WTO and examines if any work associated with these recommendations has indeed occurred and in what form.⁵ As a visual aid, the plan and summary of the chapter’s content is given in Table 3.1. The recommendations refer to five areas, each covered in one section of the chapter. Section 3.2 provides an update on the IWG’s work and the engagements of the WTO members contributing to that work (known as the Friends of Gender). Section 3.3, based on the limited information available,⁶ gauges how much of the IWG’s work programme has permeated into overall WTO operations as well as into the members’ other approaches to trade liberalization. In other words, it assesses to what degree the ongoing negotiations of trade rules/structural discussions on joint statement initiatives (that is, investment facilitation, e-commerce, and MSMEs) have a gender lens. Section 3.4 offers information on the novel work of the Secretariat (as well as other organizations and partners, and in some cases members), improving the evidence and tools necessary to make informed decisions or to make better impact assessments. Section 3.5 comments briefly on the capacity-building work emerging in the Secretariat based on the announcement of a new strategy for the period from 2021 to 2026. Section 3.6 circles back to the role of women in leading trade and trade policy work through reviewing the advancement of women into leadership and decision-making positions in the WTO Secretariat and among the members’ representatives in the WTO. Section 3.7 concludes.

Table 3.1 Advancing from WTO 1.0 to WTO 2.0

WTO 1.0 (Work programme 2020)	WTO2.0 (Feminized and modernized)	Actions taken in 2021 or expected to be taken at or after MC12
Raising awareness on links between trade and women	Full cognizance and acceptance of this new area of work through WTO IWG on Women and Trade (and working towards implementing the Declaration)	1. Final Work Plan for Implementing Activities under IWG on Trade and Gender adopted (2021). Withdrawn from the MC12 Agenda 2. Schedule of activities adopted, and six meetings held by end of October 2021 3. Draft proposal for the MC12 outcome document (led by the Friends of Gender) with recommendations on inclusion of Trade and Gender in the regular work programme was withdrawn from the MC12 Agenda
Facilitating WTO members’ actions on trade and women	Binding and enforceable language in RTAs and WTO agreements Targeted trade assistance programmes and Aid for Trade	A preview of available negotiated text for MC12 which may contain gender provisions/clauses or imply impact: 1. Fisheries subsidies 2. Domestic regulation in services 3. Joint Statement Initiative – Micro, Small and Medium-Sized Enterprises 4. Joint Statement Initiative- Investment facilitation Developments in regional agreements and arrangements: 1. Global Trade and Gender Arrangement (GTAGA) 2. Bilateral and other free trade agreements (FTAs) Aid for Trade delivery programme
Generating new data on trade and women	Mandatory impact assessment and differentiated data collection	1. Database of gender-responsive trade policies implemented by WTO members made available after MC12a 2. New WTO Trade Cost Index 3. Research by the Secretariat and partners including a proposed Gender Research Hub made available after the MC12b
Providing trainings to government officials and women entrepreneurs	Provisions on technical assistance specifically on enhancing women’s role in trade, trade negotiations and policy-making	1. IWG announced a new capacity-building strategy which integrates gender elements 2. IWG announced the availability of trade policy tools to assist members to integrate gender into the policiesc
Gender mainstreaming in WTO (Secretariat and membership representation)	Women ascending to leadership and decision-making	1. Woman appointed as Director-General (DG), and two women as Deputy-DGs (50 per cent) 2. Six divisional directors are women (35.3 per cent) 3. General Council and reporting bodies – five women are chairs (33.3 per cent) 4. TNC and committees – three women are chairs (33.3 per cent) 5. Council in goods – five women are chairs (35.7 per cent) 6. Council on services – zero 7. Council on plurilaterals – one woman chair (50 per cent) 8. Ambassadors – forty members (24.4 per cent) and four observers (16 per cent) are women

Source: Adopted and expanded from table 1 in Mikic and Sharma, ‘Feminizing WTO 2.0’ (n 6) 180.

^a For the database on gender provisions in RTAs, see WTO, ‘Database on Gender Provisions in RTAs’ <www.wto.org/english/tratop_e/womenandtrade_e/gender_responsive_trade_agreement_db_e.htm> accessed 13 September 2022.

^b For the Gender Research Hub information, including the research database on trade and gender, see WTO, ‘Research Database on Trade and Gender’ <www.wto.org/english/tratop_e/womenandtrade_e/research_database_women_trade_e.htm> accessed 13 September 2022.

^c According to the WTO Secretariat’s statement, this trade policy tool package will include (a) An extensive questionnaire that members could use (fully or partially) to integrate a full chapter into their trade policy reports or to assess how gender has been integrated into their trade policies; (b) A checklist derived from the questionnaire that can be used for the same purpose; (c) A guidebook to support members in this exercise; (d) Indicators that can help members understand how trade rules can be implemented with a gender lens. The first set of indicators will be developed for the Trade Facilitation Agreement. This package is complementary to the ITC’s SheTrades Policy Outlook. As the tool is not publicly available at the time of finalizing this chapter, it is not possible to provide further comments on it. See WTO, ‘WTO Secretariat Talking Points’ (16 July 2021) <www.wto.org/english/tratop_e/womenandtrade_e/16july21/statement_from_wto_secretariat.pdf> accessed 8 May 2022.

The first two columns of Table 3.1 were presented by Mikic and Sharma as the pre- and post-feminization reform states of the WTO. The first column – WTO 1.0 – reflects what has been described as a gender-blind trade system that existed when the Buenos Aires declaration was adopted, but not fit to tackle the contemporary challenges to trade, not least because of not providing for women in trade. The second column – WTO 2.0 – describes the attributes of the trade rules system after the ambitious Buenos Aires declaration and other developments. WTO 2.0 by no means indicates that no further advances concerning the feminization of the WTO should be needed or expected. Nevertheless, WTO 2.0 would already be an advanced environment in which women would benefit from trade and contribute to trade policymaking more than at present. The third column of Table 3.1 lists the actions already taken in preparation for MC12, such as drafted and pre-negotiated statements, declarations, and other documents, and the decisions that need to be taken at MC12 to move the work forward.

It is obvious from Table 3.1, and more explicitly discussed by Mikic and Sharma, that the approach to the analysis of trade and gender issues in the context of the WTO needs to look at the organization from two perspectives: (1) as an international organization, and (2) as a set of various trade rules which form a so-called multilateral trading system. Trade and gender discussion related to the WTO as an international organization boils down to the following: (1) implementation of the mandates from the membership (i.e., Declaration on promoting women’s empowerment); (2) delivery of technical assistance/capacity building for its members to improve formulation and implementation of gender-responsive trade policies and market-opening instruments; (3) generation and delivery of data, tools, and analysis relevant for evidence-based policy-making of members; and (4) finally, improving the gender composition of staff in the organization so as to enable the promotion of women into leadership positions (as well as to support members in this regard) and to promote gender equality. Looking at Table 3.1, rows 1, 3, 4, and 5 include initiatives and actions addressing trade and gender issues from the perspective of the WTO as an organization. When looking at the WTO as a set of rules for trade policies, which, in turn, determine how these policies impact women,⁷ the focus is on how the gender lens is used when negotiating multilateral and plurilateral trade rules (Table 3.1, row 2).

3.2 Let’s Make It Formal

It was almost three years after the 11th Ministerial Conference (MC11) in 2017 delivered the Buenos Aires Declaration on Trade and Women’s Economic Empowerment calling for greater inclusion of women in trade and trade policy-making that there was any action.⁸ Initially supported by 118 members and observers, this number has risen to 127 as of September 2022, which still leaves about one-third of members and observers sitting on the fence, including India, South Africa, and the United States.

It took an initiative by Botswana and Iceland to put together an IWG on Trade and Gender, which was inaugurated in September 2020 in a virtual meeting as per the new pandemic norm.⁹ After a meeting in late 2020, the first regular (and again virtual) meeting of the IWG was in February 2021 and it resulted in adoption of the Schedule of Activities in 2021 (January–July) and a Draft Work Plan, which was soon revised into the Final Work Plan.¹⁰ The two initial co-chairs were joined by El Salvador in April 2021 and the IWG continued working with the Friends of Gender (comprising nineteen members and observers, four international organizations and the Secretariat) towards a strong delivery for the MC12. Throughout still pandemic-affected 2021, the IWG had six meetings by the end of October, with another scheduled for 24 November. The work of the group evolved around the four pillars stipulated in the Buenos Aires Declaration, and meetings were planned to feature members’ experiences (best practices) in promoting women’s economic empowerment, the most relevant recent research by the Secretariat and its partners, to discuss delivery of the Aid for Trade activities and efforts to clarify the meaning of the ‘gender lens’ and how it applies to the work of the WTO.¹¹

After an active year, at the first anniversary meeting in September 2021, the IWG announced the draft MC12 outcome document containing recommendations for WTO members to continue work on increasing women’s participation in international trade. The intention of this document was to convince members to include ‘women’s economic empowerment issues into the regular work of WTO bodies, improve the impact of Aid for Trade on women by mainstreaming gender considerations into programmes and strategies, increase data collection, and coordinate research’.¹² Unfortunately, due to the complex geopolitical situation resulting from the Russian invasion of Ukraine, this proposal never reached the MC12 Agenda. It was replaced with a rather unambitious ‘[s]tatement on inclusive trade and gender equality from the co-chairs of the Informal Working Group on Trade and Gender – Twelfth WTO Ministerial Conference’.¹³ Instead of producing formalized work on Trade and Gender in the WTO and giving a boost to potential conversion from its current plurilateral mode to a multilateral one,¹⁴ one paragraph almost at the end of the MC12 Outcome Document referred to, inter alia, work on trade and gender.

Nevertheless, members in the Friends of Gender and the co-chairs of the IWG ought to be commended for their initiative in turning the Buenos Aires Declaration that had lain dormant into an active work plan pre-MC12 as well as on the achievements in the aftermath of the MC12.

3.3 Enforceable (or Any?) Provisions towards Women’s Economic Empowerment

Admittedly, not all WTO members are keen to see the use of a gender perspective when deciding on their trade policies. There is a rich literature on how trade and trade policies may impact women in their roles as consumers, entrepreneurs, workers, or taxpayers, from both export and import (import competition) perspectives.¹⁵ This literature explains the mechanisms through which trade impacts women’s welfare (well-being) and not only their economic prosperity. It is important that policymakers (including officials in the relevant ministries and parliamentarians) understand these mechanisms as they are most often responsible for providing the negotiating mandate to negotiators who then must follow it in multilateral or other levels of negotiation.¹⁶ Not to be forgotten, trade reforms that countries undertake on their own (so-called unilateral policies) often have the strongest impact on economic actors, including women.

As we saw, the proposals and requests to consider a gender lens when setting either trade-restricting or trade-expanding policies date many years back. However, our focus here is to identify if there was any ‘leakage’ from the Buenos Aires Declaration and the establishment of the IWG with its work plan into the texts that members were considering for negotiation and adoption at the MC12. Even a few days before the new date of the MC12, only a limited number of documents were publicly available as most of the negotiating texts were still ‘open for negotiations’. As a default option, a conversation with experts and ‘insiders’ was used to inform (considering confidentiality) on the existing gaps. Furthermore, in December 2021, several documents were released enabling us to check whether or not they remain ‘gender-blind’.¹⁷

Table 3.2 combines agenda items of the MC12 (including those that were expected but in the end were dropped for geopolitical reasons) with an assessment of to what extent a gender lens is present.

Table 3.2 A delivery of the MC12 on women’s empowerment provisions

MC-12 Package of decisions and declarations
Areaa	Women’s empowerment provisions – if and how gender was mentioned
Trade and women (dropped from the agenda)	If the prepared Joint Ministerial Declaration On the Advancement of Gender Equality and Women’s Economic Empowerment Within Trade 12th WTO Ministerial Conference (WT/MIN(21) 4 dated 10 November 2021)b was included, the outcome would have meant a confirmation of the IWG work programme and a push for concrete deliverables at the 13th Ministerial Conference
The MC12 outcome document	‘13. We recognize women’s economic empowerment and the contribution of MSMEs to inclusive and sustainable economic growth, acknowledge their different context, challenges and capabilities in countries at different stages of development, and we take note of the WTO, UNCTAD and ITC’s work on these issues’ This paragraph includes a footnote which reads: ‘These are general messages on cross-cutting issues that do not change the rights or obligations of WTO Members (and do not relate to any Joint Statement Initiatives)’
‘Trade and health’ was adopted as the Ministerial Declaration on the WTO Response to the COVID-19 Pandemic and Preparedness for Future Pandemics and the Ministerial Decision on the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement	No reference has been made despite the disproportional impact the pandemic has had on women
Agreement on fisheries subsidies	Despite the great significance of this Agreement for the United Nations Sustainable Development Goals and the Agreement’s innovative transparency and notification requirements, the text remains silent with respect to the impact on or role of women in this area
Agriculture negotiation boiled down to adopting the Ministerial Declaration on the Emergency Response to Food Insecurity and the Ministerial Decision on World Food Programme Food Purchases Exemption from Export Prohibitions or Restrictions	As foreshadowed by the text entitled Committee on Agriculture in Special Session – Report by the Chairperson, H. E. Ms Gloria Abraham Peralta, to the Trade Negotiation Committee 19 November 2021 (TN/AG/50 dated 23 November 2021),c the adopted declaration also did not include any reference to women, their empowerment, or impacts on their well-being in area of agriculture trade (opening) or food emergency
Decision on E-Commerce Moratorium and Work Programme	No reference to gender or women’s economic empowerment
A Smooth Transition Package in Favour of Members Graduating from the LDC Category	No reference to gender or women’s economic empowerment has been made
Services domestic regulation	The Declaration on the Conclusion of Negotiations on Services Domestic regulation (WT/L/1129 dated 2 December 2021) and the Joint Initiative On Services Domestic Regulation – Reference Paper on Services Domestic Regulation (INF/SDR/2 dated 26 November 2021)d brought for the first time into the WTO rules a direct reference to women by including a provision prohibiting an exclusion of measures which discriminate against women. Below is the extract from the Reference Paper: Development of Measures: ‘22. If a Member adopts or maintains measures relating to the authorization for the supply of a service, the Member shall ensure that: (a) such measures are based on objective and transparent criteria (17) (b) the procedures are impartial, and that the procedures are adequate for applicants to demonstrate whether they meet the requirements if such requirements exist (c) the procedures do not in themselves unjustifiably prevent the fulfilment of requirements and (d) such measures do not discriminate between men and women (18)’ And footnote 18: ‘Differential treatment that is reasonable and objective, and aims to achieve a legitimate purpose, and adoption by Members of temporary special measures aimed at accelerating de facto equality between men and women, shall not be considered discrimination for the purposes of this provision’
Not discussed or adopted at the MC-12
Joint Statement Initiative: MSMEs	Based on the Declaration on MSMEs released on 6 October 2021e Main text does not contain any reference to gender or women. However, in Annex I ‘Recommendation on the collection and maintenance of MSME-related information’, Point 3 in the appended Checklist refers to: ‘Available statistics (overall or by sector) on MSME ownership by diverse groups (e.g., women, youth, etc.)’ Several places in other annexes to this declaration miss the opportunity to include a clause/reference to women/gender, especially in the annex on trade finance and cross-border payments
Joint Statement Initiative: e-commerce	Draft text not available for public access
Joint Statement Initiative: Investment facilitation	Draft text is not available for public access and the chair’s summaries do not provide sufficient details
Other ongoing WTO initiatives worth monitoring for possible direct inclusion to provisions related to women’s empowerment through trade
Clean cooking, women, and energy	Might be mentioned in declaration but nothing enforceable
Women and intellectual property (IP)	Continuing the theme of IP and innovation which has regularly featured on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) Council’s agenda since 2012, Australia, the European Union, Japan, Switzerland, Chinese Taipei, the United Kingdom, and the United States proposed a discussion on ‘Women and Intellectual Property’ (IP/C/W/685), an initiative also co-sponsored by Chile and Canada Members engaged in a discussion about specific programmes for assisting or promoting women’s participation in the IP system, and on measures that have proven useful for supporting women entrepreneurs in participating in the IP system. They also exchanged experiences on how to raise women entrepreneurs’ awareness of the benefits of IP for their business activity, on the main challenges and specific barriers found for women entrepreneurs, and on economic sectors where women are particularly active and could benefit from the IP system

Source: Author’s own, based on review of available documents and communication with experts.

^a WTO, ‘Twelfth Ministerial Conference’ <www.wto.org/english/thewto_e/minist_e/mc12_e/mc12_e.htm#outcomes> accessed 13 September 2022.

^b WTO, ‘Joint Ministerial Declaration on the Advancement of Gender Equality and Women’s Economic Empowerment Within Trade 12th WTO Ministerial Conference’, WT/MIN21/4 (10 November 2021).

^c WTO, ‘Committee on Agriculture in Special Session – Report by the Chairperson, HE Ms Gloria Abraham Peralta to the Trade Negotiations Committee’, TN/AG/50 (23 November 2021).

^d WTO, ‘Declaration on the Conclusion of Negotiations on Services Domestic Regulation’, WT/L/1129 (2 December 2021).

^e WTO, ‘Informal Working Group on MSMEs, Declaration on Micro, Small and Medium-Sized Enterprises (MSMEs)’, INF/MSME/4/Rev.2 (6 October 2021).

The content of Table 3.2 does not invoke optimism that the WTO members will be embracing the recommendations on including strong and enforceable women’s economic empowerment provisions in the WTO agreements any time in the near future. There is, of course, a continued risk that any new type of provisions able to impact trade flows might be abused as a new form of protectionism (e.g., green and environmental provisions, labour, health, and, indeed, gender). The danger of using these in a discriminatory fashion is much greater in the absence of any international rules to guide (and constrain as necessary) the behaviour of policymakers.

Furthermore, there is evidence that members have moved on with creative approaches to opening the markets to keep trade and investment going albeit outside the multilateral space. Some pursued these alternative rules (typically regional or bilateral, rarely unilateral), arguing that the multilateral route is not effective. Examples include so-called deep preferential trade agreements or sectoral agreements covering digital trade, known as digital economy partnership agreements (DEPAs).¹⁸ Cynics would argue that it was because the non-most-favoured-nation (MFN) route allowed for more selective discrimination.¹⁹ Notwithstanding, the same creativity should be used when it comes to promoting women’s economic empowerment through trade agreements. There were some very promising alternative arrangements and agreements that can work easily at the MFN level and can support modernization of the multilateral trade system. These include deep regional trade agreements with separate chapters (provisions) on driving women’s economic empowerment through trade. Examples include most of the recent bilateral FTAs of Canada but also the plurilateral GTAGA, signed initially by New Zealand, Chile, and Canada and now joined by Mexico.²⁰ This is not a trade agreement, but a cooperation arrangement where countries can exchange lessons on both domestic policies and trade policies.²¹ Readers interested in more details on this topic can refer to several other chapters in this volume which address trade and gender at the level of regional and bilateral trade and investment agreements in more detail than is possible in this chapter.²²

3.4 Impact, Impact, Impact

An impact assessment has become an integral process of trade policy-making. No policy change – including trade-restricting/expanding policies at any level – should be passed to an implementation phase without prior scrutiny and ex ante impact assessment. Referencing the European Union’s mandatory ex ante or ex post impact assessment of proposed agreements of grant of preferences, Mikic and Sharma proposed that an ‘efficient strategy for the inclusion of a gender lens approach in trade agreements could be the inclusion of a mandatory impact assessment of proposed agreements wherein if an agreement does not contribute to women’s economic empowerment, it would not pass the “RTA transparency mechanism” review’.²³ This will be a step ahead of what the Buenos Aires Declaration proposed in terms of collection and sharing of better quality data, which will be able to be mined for deeper insights into the impacts of trade on women as well as how women may impact trade.²⁴

As with some other instances where data availability takes the blame for lack of transparency or weak analytical work, most often an absence of solid gender-impact assessment of trade policy changes is explained by lack of data. As a member-driven institution, the WTO also falls into this mould of waiting for the members to supply data (which potentially might produce results not working in the interest of these members). The only solution is for the Secretariat to dedicate some of its own (very capable) human resources and in partnership with other international institutions, think tanks, and other actors and produce data and analysis necessary for gender-responsive policy-making. The first nudge for the Secretariat to move in this direction came with the Global Financial Crisis and calls for better monitoring of the use of discriminatory trade policies to which the Secretariat responded by producing six-monthly monitoring reports for G20 countries, responsible for the lavish share of global trade.²⁵ The COVID-19 pandemic was another strong impetus for the Secretariat to ‘get out there’, collect data, and provide members with evidence on how the pandemic impacted their trade (and more) as well as how the organization of global trade might have been impacting the members’ capacity to respond to the pandemic. The Secretariat has responded to this challenge, and many members have been better informed and their decisions positively affected by the information and research available to all at the dedicated pages on ‘COVID-19’ and ‘Trade’.²⁶

Similarly, the Secretariat made progress in terms of collection of data and production of research, helping better policy-making. First, it produced a new Trade Cost Index, which provides more insights into determinants of trade costs and their burden with respect to different income groups and most importantly women and men separately.²⁷ This new methodology allows trade costs to be tracked for eighteen years for over forty countries.²⁸ Figure 3.1, reproduced from the Secretariat’s note,²⁹ shows that women have been burdened with higher trade costs throughout the observation period.

Figure 3.1 Global export cost index by gender.

Source: WTO, ‘WTO Trade Cost Index: Evolution, Incidence and Determinants, Background Note’ (24 March 2021) 5, figure 16.

As indicated in Table 3.1, the Secretariat announced that it will provide another novel database collating all gender-responsive trade policies implemented by WTO members. This database is sourced by information from members’ trade policy reports and independent research produced by the Secretariat and other agencies. It also includes the gender provisions contained in various trade agreements that members have concluded.³⁰

In 2021, the WTO launched the WTO Gender Research Hub to enhance collaboration and exchange among researchers and analysts working on the linkages between trade and gender. The Hub will also serve as a platform for dialogue between researchers and the IWG. The main participants in the Hub are the Organisation for Economic Co-operation and Development (OECD), the UNCTAD, the International Monetary Fund (IMF), the World Bank Group (WBG), the ITC, the UN Economic Commission for Latin America and the Caribbean (ECLAC), three holders of the WTO Chairs Programme (Chile, Mexico, and South Africa), and individual academics.³¹

3.5 First, Teach a Woman …

The WTO has been providing trade-related technical assistance (TRTA) to its members (and other stakeholders) since its establishment – expanding it from what was available during the era of General Agreement on Tariffs and Trade (GATT). Increasingly, the focus of the assistance has moved from negotiation to implementation, building capacity for trade policy-making and transparency. In support of Trade for Women, TRTA will also need revamping. According to the Secretariat’s note on the new training strategy for 2021–2026,³² the programme will combine tools to support WTO members, providing them access to concrete solutions for integrating gender into trade policies and for implementation of trade rules with a gender lens. It comprises a multi-pronged approach offering a regular course on trade and gender; training for the delegates in Geneva; online training; and national-level activities upon request.

In addition to the training on trade and gender linkages, which aims for gender-balanced participation, there is a need to enhance the capacity of women as negotiators, policymakers, policy influencers, and traders. As already noted by Mikic and Sharma, additional efforts should be made to close the knowledge gap for women working in trade.³³ As was exposed through the pandemic, lack of digital literacy for business (not to mention access to digital infrastructure) has undermined the capacity of millions of women to cope with the pandemic-initiated crisis and caused further social and economic inequalities.³⁴ At the same time, the unpreparedness of national regulations to absorb the move to digital trade, online payments, and digitalization in general, made the situation in many developing countries hit by the triple crises of 2020 even worse. A crisis such as the world has been experiencing since January 2020 proves how important it is to have access to physical and natural capital to address external and internal shocks, but also, most importantly, to human capital. If we neglect improving the skills and knowledge of (about) half of human potential, we risk not being able to respond to these challenges. We are talking about 50 per cent of the population on average being women, so we must have at least such a ratio when we create human capital, in trade and in all other fields.

3.6 No More Glass Ceilings for Women in Trade?

There is a rich body of literature on the establishment of the international organization to govern trade, from the drafting of the 1948 Havana Charter to the 1994 Marrakesh Agreement and more which are not the subject matter of this chapter. However, very often – if not always – when Secretariat staff talk about the WTO, they categorize it as ‘the member-driven organization’, implying the existence of (possibly significant) limitations on the independent work of the Secretariat (this has been more recently and intensively discussed in the context of the role of WTO in the pandemic).³⁵ While these constraints impact appointments at the highest level of management (as documented by the appointment of the current Director-General), the author of this chapter holds that these constraints do not apply to the recruitment of divisional directors and other staff in the Secretariat.³⁶

In the absence of newer gender-differentiated statistics for the whole Secretariat, the comments here pertain to management level only. Naturally, one must start with the historic appointment of Dr Ngozi Okonjo-Iweala as the first woman Director-General. She then proceeded to make history by appointing two women as Deputy Director-Generals (or 50 per cent) which is a clear break with the past. The improvements with respect to women’s share in the management positions within the Secretariat do not stop here. At present, six out of seventeen divisional directors are women (35.3 per cent).³⁷ That is almost double the share Mikic and Sharma reported (18 per cent).³⁸

When it comes to the gender composition of the members’ representatives in the WTO, these numbers also show an improvement, although small.³⁹ At present, no woman chairs the Council or the Committees. However, 33.3 per cent of chairs of the bodies reporting to the General Council are women; similarly, 33.3 per cent of chairs in the Trade Negotiating Committee are women, 35.7 per cent in the council on Goods, and 50 per cent in the Council on Plurilaterals. Only the Council on Services has no woman engaged as a chair. These chairs come from the forty women ambassadors (24.4 per cent) from the members’ group and four from the WTO observers (16 per cent), which is still a significant underrepresentation of women in the most important global trade governance body.

With the ceiling seemingly being removed, the sky should be the limit. A plethora of initiatives bringing together women working in the area of trade and trade policy-making shows that there is both demand and supply for such self-organized and -driven communities aiming to strengthen women’s role as influencers in the public and private sectors. Women hold an enormous amount of knowledge and skills relevant for making trade contribute to sustainable development and thus women should be actively encouraged to play their role in the trade community.

3.7 Conclusion

We have come a long way since it was acceptable to claim that trade as an economic activity and trade policy as part of economic coordination is gender neutral. It is indisputable that trade policies can (and should) be used to advance the economic and social well-being of women. Women have been, and increasingly will be, directly involved in making critical and path-changing decisions at national, regional, and global levels on how trade could be used to promote sustainable development.

Based on the performance of women in decision-making and leadership positions during the last two years of the pandemic, we should be actively placing women into jobs and roles with responsibilities for tackling current and emerging crises. Not only that, but we should also look more decisively to removing obstacles that prevent women from employing their full potential and contributing to generate prosperity and more just, responsible societies.

In this chapter, we attempted to find out about the progress of the feminization of the WTO, which is our shorthand for the implementation of the Buenos Aires Joint Declaration on Trade and Women’s Economic Empowerment. While 127 WTO members and observers had joined in this Declaration, apparently showing an overwhelming interest in supporting women’s economic empowerment, it still did not convert into a more ambitious self-standing MC12 multilateral declaration. Furthermore, following our review of how much of this support was translated into changes of trade rules to promote women’s economic empowerment and engagement of women in trade, we were not impressed. Among all of the members’ work on new rules or directions for the WTO’s reform, only one (joint initiative on Services Domestic Regulation) includes a reference to gender-responsible trade policy. Despite evidence of the great importance of fisheries, agriculture, and MSMEs for women, the members missed the opportunity to build in adequate promoting provisions. While one must appreciate the existence of some progress (‘WTO is not gender blind anymore’⁴⁰), there is no time for complacency. If there is any chance for the disproportionate burden that women have been carrying throughout the pandemic (as in so many other crises) to be shifted and rebalanced, trade policy must become more gender responsible. The time has come to accept that work on women’s equality in trade is the core of the trade agenda.

4 Global Economic Governance and Women Why Is the WTO a Difficult Case for Women’s Representation?

Judit Fabian

^*

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?’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)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,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.’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,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.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.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,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. 1. Women did not ‘get in on the ground floor’ at the WTO;

2. 2. The locus of power at the WTO rests with the members, as exemplified by:

   1. a. the requirement for consensus and the ‘single undertaking’;

   2. b. the importance of member proposals; and

   3. c. the institutional weakness of the Secretariat;

3. 3. The relative lateness and weakness of WTO involvement with civil society compared to other institutions of global economic governance;

4. 4. The formative clashes during the 1980s and the 1990s between gender and trade activism and trade liberalization;

5. 5. The lex specialis nature of the WTO dispute settlement system; and

6. 6. That the WTO is primarily a ‘hard law’ institution.

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’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 1947,¹⁰ and adopted in full as part of the founding agreements of the WTO in 1994.¹¹ 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,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’.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.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 Report¹⁵ 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.¹⁶ This is despite a relatively widespread understanding in 2007 of the gendered effects of trade, even within the WTO Secretariat.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.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).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’.²⁰ In this context, the placement of the WTO ‘outside’ the United Nations (UN) system as a related organization²¹ becomes even more important, since the WTO falls ‘outside’ the mandate of UN Women to promote and advance gender mainstreaming throughout the UN system.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.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.²⁴ Moreover, the ‘single undertaking’ requirement²⁵ – 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.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.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.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.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’.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.’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.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 2007.³³ 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.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.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.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)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.³⁸ This approach concerning labour standards has been implemented with success by European countries towards developing countries since 1971.³⁹ 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.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.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’.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.⁴³

What one finds upon closer inspection is that while the Secretariat became fairly successful in achieving equal representation of women and men,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,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.⁴⁶ From 1994 until 2013, former members included fourteen men and only three women.⁴⁷ Among chairpersons of the General Council in 2013, thirteen were men and only one a woman.⁴⁸ Among chairpersons of the Trade Negotiations Committee Council, nine were men and only one a woman.⁴⁹ Of chairpersons of the Council for Trade in Goods, the 2013 division was ten men and three women.⁵⁰ For Trade in Services, remarkably enough, the division was two men and two women.⁵¹ For chairpersons of the Committees of Plurilateral Agreements, the division in 2013 was two men and no women.⁵²

This represents a significant disparity and suggests that even descriptive gender equality in the Secretariat⁵³ 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.⁵⁴ Among chairpersons of the General Council in November 2021, nine were men and six women.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).⁵⁶ Of chairpersons under the Council for Trade in Goods, nine were men and five women.⁵⁷ For Trade in Services, four were men and none women.⁵⁸ Finally, the only chairperson of a Committee of Plurilateral Agreements was a woman.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.’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.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]’.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.’⁶³ Another interviewee stated plainly that ‘the Secretariat in the WTO has zero initiative power. It can never propose something’.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,⁶⁵ currently signed by 127 WTO members and observers,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).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.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.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 2001.⁷⁰ 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.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.⁷² He emphasized that the Guidelines stated that NGOs could not be directly involved in WTO work,⁷³ and that closer cooperation with NGOs could be achieved ‘through appropriate processes at the national level’.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.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,⁷⁶ and the Independent Evaluation Office (IEO).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.⁷⁸

Finally, in 1995, APEC founded the APEC Business Advisory Council (ABAC), which contributed to the 2013 APEC Policy Partnership for Food Security (PPfFS),⁷⁹ and to the 2011 APEC Business Travel Card Programme.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 economies⁸¹ and was established to ‘foster regional cooperation among tertiary and research institutes to promote greater academic collaboration on key regional and economic challenges’.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.⁸³ The support of the Canadian International Development Agency (CIDA) for WLN led to APEC’s Framework for the Integration of Women in APEC,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.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.⁸⁶ Moreover, UN Security Council Resolution 1325 called for ‘the integration of gender across UN security policy and operations’.⁸⁷ Even if delayed in implementation and of questionable effectiveness,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’,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’.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).’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’.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.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’⁹⁴ and that ‘worked to articulate a feminist perspective on free trade’.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).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.⁹⁷ Their opposition was framed in terms that recalled those used by the NAC in opposition to the Canada–US FTA.⁹⁸ Further, gender and trade advocates participated in the Mexican Action Network on Free Trade (RMALC) coalition against NAFTA.⁹⁹ Women’s NGOs were also involved in the successful broad-based civil society efforts against the Multilateral Agreement on Investment (MAI) in 1998,¹⁰⁰ against ‘fast-track’ authorization in 1997 for the Clinton Administration to extend NAFTA membership,¹⁰¹ for a ‘social-labour declaration’ at the December 1998 Mercusor summit,¹⁰² and against the proposed Free Trade Area of the Americas (FTAA).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.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!’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.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’¹⁰⁷ worldwide, of which thirteen were in the global north, but seven were in the global south, and one was entirely internet-based.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’.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.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)¹¹¹ in 1980.

The question of lex specialis is crucial because, in international law, ‘lex specialis derogat generalis’ – ‘specialized law derogates from general law’.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’.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’.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.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.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’.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)’.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.¹¹⁹

Table 4.1 Fundamental international agreements and conventions that prohibit all forms of discrimination on the basis of gender

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.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.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.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’;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.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,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.¹²⁶ Equally, Aid for Trade can provide a locus for policy innovation and research towards the same end,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.¹²⁸