EJIL: Talk! | 13 October 2020
UNCITRAL and ISDS reform (online): can you hear me now?
by Anthea Roberts and Taylor St. John
‘Can you hear me now?’ is a question that the delegates of Working Group III asked each other often last week, as negotiations on ISDS reform continued but were, for the first time, online. Moving online means that negotiators are also facing many other new questions. How do you keep momentum going? Does moving online mean more governments and more officials participate? Or does it lessen the prestige and priority of the negotiations, leading to less engagement by key officials? How do you read the room? How do you build coalitions? If what matters most is what happens in the margins, what happens when there are no margins?
The technology
Technology has long been part of these negotiations. WhatsApp messages and emails whoosh between officials in the negotiating room, allowing them to share reactions to what is happening on the floor and enabling them to coordinate their positions and dinner plans. These messages and emails are still whooshing, but now the officials sending and receiving them are spread throughout the world. The morning sessions began at 5 am for the Chair in Canada, while the afternoon sessions ended after 2 am for the Australian delegation.
In one sense, this exercise is a triumph of virtual communication. We are glimpsing the future and, like people seeing their first trans-oceanic telegram or hearing their first long-distance phone call, it awakens a sense of wonder and possibility. By now we are all accustomed to videoconferencing, but this is no ordinary zoom call. This is the United Nations. And these negotiations are happening at scale.
The UN’s virtual negotiating platform, Interprefy, allows participants to select any of the UN’s six working languages, and the voices of UN translators automatically come in over the top of the speaker when translation is required. There is a public chat feature that enables participants to make a brief point or share a link—a feature that was used frequently and efficiently. The main image on screen is always a live feed of the conference room in Vienna, where a handful of delegations and Secretariat staff are working. This visual centring provides an anchor, a sense of place and time, for the participants calling in from around the world.
Although many participants noted that the virtual platform worked better than they had expected, as with any new technology, there were teething problems. Particularly during the first few days, technology delays frustrated participants, as many individuals were unable to speak when called upon, even if they had tested their connections before the session and even if they were coming from places with fast, reliable internet (like Brussels). Most connection difficulties were eventually resolved, but not all. After a few failed attempts, China had to email its interventions, in English, to be read into the record by the Secretariat. South Africa and a few others did likewise. ‘Can you hear me?’ became a common refrain. Sadly, the answer was often ‘no.’
When the technology works well, it makes the world ‘flat’ in exciting ways. But it also makes the world feel flat in other, less exciting ways too. In person, negotiations are something of a performance: it’s live theatre, and some speakers play to the audience, looking for laughs or signalling with their tone that they will be holding firm to this particular position, no matter how many times they have to raise their placard to defend it. Online, speakers convey information. They can’t see anyone’s reactions or feel the room’s collective response, so they have less incentive to perform. The purpose of their remarks is often just to deliver their prepared remarks or give instructions to the Secretariat. At times this week felt more like a successive reading out of prepared statements rather than a real dialogue.
The viewer’s frame becomes narrower too. In person, individuals can get a panoramic view of the room. As observers, we build a textured sense of what is happening by weaving together information from multiple sources. We watch how officials react as they listen to others. We watch who talks to whom. We see who approaches the Secretariat’s dais during breaks. Negotiators watch all these little things too. The margins also matter. A lot. In corridor discussions and over drinks, officials get to know each other and trade information, figuring out who is part of their coalition, sharing experiences, and setting up plays together. In person, WhatsApp messages and emails are supplementary tools. They help officials put their plays into action and share information quickly, but they are one among many inputs.
Online, negotiators have fewer input feeds. They have three images (a fuzzy, birds-eye view of the conference room, an inch-square video of the speaker, and an inch-square video of the chair) and, if they’re well-connected, they have WhatsApp messages or emails, often primarily with a smaller group of likeminded states. When they thread these inputs together, they are left with considerably less information than they can pick up in person. It reminds us of studies that find that the vast majority of communication is non-verbal or that emphasise the importance of social interaction in facilitating online negotiations. One participant observed (over WhatsApp) that the experience of moving the negotiations online was like switching from 3D to 2D or from colour television to black and white.
Technology enables global negotiations, but it also narrows the frame and flattens the experience for participants. What consequences will that have for participation, and for the process overall?
The people
The number of individuals registered to participate in Working Group III has grown in every session to date, and was up to 338 members of government delegations in the January 2020 session. This expansion has helped create a dynamic, deliberative hub and generated centripetal forces that pull more and more officials and governments into the process. What will happen to this momentum now that the process is online?
One possibility is that the pull of UNCITRAL reaches even more governments than before and participation continues to grow. Several states that had not attended previously were present this week, including Botswana, the Maldives, Turkmenistan, and Zimbabwe, while states that previously only had representatives from their missions now registered officials from capital too. Despite the existence of the travel fund (which has played an important role in increasing participation and continues to receive support from the European Union and European governments), governments with severely constrained budgets must think carefully about sending even one official in person. Participating online, on the other hand, does not require a costly visa, multiple flights, and a week of hotel expenses, as well as putting other work aside for an entire week – the barriers to participation are much lower.
Recognising this, many states used online negotiations as an opportunity to introduce lots of officials, from a range of ministries, to the UNCITRAL process. The Philippines registered 25 officials as participants this time, a significant increase from its average delegation size of 5 at earlier sessions of the Working Group. Other states also registered much larger delegations than they have previously: Kenya had 15 officials, Jamaica 8, Peru 12, Thailand 16, Turkey 16, Venezuela 9, and South Korea, which has brought large delegations to all sessions, still registered 15. We also see some delegations including representatives from many different government departments and even the domestic judiciary.
It is too early to tell, but these large delegations may be harbingers of a new, more inclusive style of diplomacy. Traditionally, a few individuals represent a government at a negotiation, and as these individuals work with their colleagues from other countries, a camaraderie develops. Sometimes a collective identity is forged, as these individuals begin to see themselves as members of a transnational team working toward an agreement, in addition to identifying as representatives of their country. With the shift online, a select group of officials will not have the same opportunities to develop that camaraderie. Instead, a wider group of officials, from multiple agencies, all get to see and possibly participate in the negotiations. We notice, for instance, that some delegations are letting some of their more junior members (often women) speak more or for the first time.
These democratising tendencies might be applauded – 134 states were registered to attend this week, the highest ever, and 406 state officials, also the highest ever. These numbers are accomplishments and reflect the importance governments place on ISDS reform and their recognition of UNCITRAL as a central hub. Although more states and officials were in attendance, our sense was that the number of states speaking was not greater and might have been less than in recent rounds. Some states, for instance several Francophone African states, spoke less than before. Nonetheless, the Secretariat reported over 400 logins to the platform each day – the foundation for inclusive online negotiations has been laid.
Yet inclusivity can be a double-edged sword. Another possibility is that as negotiations move online, they lose priority and prestige in the minds of participants. Since busy officials do not have to clear their schedule to travel and attend in person, they may end up having other meetings or returning emails, paying less attention, engaging less fully. Many people are registered. But how many are paying attention consistently? Wider government networks are good. But often you need commitment from a handful of key, senior officials who identify with the cause and make it their mission to push something through—a signature achievement—both internationally and domestically. Will going online having a diluting function with respect to prestige and participation?
Democratising participation has also led to another new dynamic. In person there is a clear hierarchy, in which states sit at the front and non-state observers sit at the back of the room. This physical arrangement reinforces the understanding that, although Working Group III is inclusive, it is first and foremost a forum for states. Online this reminder is missing and, possibly as a result, some non-state observers from academic and business organisations (but, interestingly, not from civil society organisations) seemed to intervene more frequently than in previous sessions, some at length. Some of these interventions provoked private annoyance by some officials who view this as a rare opportunity to share states’ views, practices and experiences. Time constraints are felt particularly keenly this week given the online sessions run for only four hours a day instead of the usual six hours. While polite, the chair reminded participants that state interventions take priority.
Going the distance
This is the first UNCITRAL Working Group III session to go online. Will it be the last, or is it the first of many online sessions? Online negotiations can carry the process forward, but in some sense they seem propelled by the momentum built in earlier sessions – online negotiations do not seem to generate their own momentum. Seeing someone on the screen that we know and like brings back fond memories of connections past, while the return to skirmishes of old provokes a familiar smile. It is like entering into a long distance relationship that remains fuelled by memories of in person connection. But what happens as the time drags out and the challenges mount? Will the group’s commitment remain? Or will it wane? And what is the experience like for new people entering into the process? How do they build networks and personal connections? How do they make up for what is missed in the margins?
When shall we three [hundred and thirty eight] meet again? We do not know. The Chair expressed hope that it would be soon, maybe even in April. But we have our doubts. We also don’t know what this means for our role in the process. If one of the values of our blogs was to give a sense of the room—a feeling of what it was like to be there—what happens when the room is mostly empty and we are not in it? Again, we do not know. What we do know is that we are witnessing an extraordinary event—the movement of major international negotiations online. It may be more formal, it may be flatter, and it will involve technological difficulties. But it is what we have. And the job of the negotiators is to make the best of it.
The question is how. How can officials move forward, what new means of connecting can be created or employed, and who will lead or manage these new modalities? Part of the answer is social – participants may develop new rituals to make connections online, since they are unable to engage in the social rituals of old. Part of the answer is substantive – participants may find ways to do more work among likeminded states or among states with a strong interest in certain issues. For instance, a virtual intersessional session on mediation will go forward in November. Working Group III has built a lot of momentum in its earlier sessions and moving forward at a reasonable speed is a priority for some states, so we would not be surprised if states and the secretariat find new ways like this to make progress.
The move online may not be temporary, either. Online negotiations may become a tool that complements in-person sessions, even after Covid subsides. Certain discussions or stages of a negotiation likely work well online, while others may work less well. Sharing initial views online might be fruitful, while resolving entrenched divisions to reach a compromise text might be harder online, for instance. Time will tell how states manage this new online reality. Whether online or in person, we will continue observing and listening to them. The connection may not always be perfect, but we look forward to hearing what they say.
