Abstract

Every WTO accession protocol states that it “shall be an integral part of the WTO Agreement.” But what legal effect does this clause really have? Specifically, does it allow application of the general exceptions found in GATT Art. XX and GATS Art. XIV to accession protocol commitments? Understanding this relationship between the Multilateral Trade Agreements and accession protocols is a critical next step as Members seek to enforce these obligations in Dispute Settlement Body (“DSB”) proceedings. To date, few WTO disputes have addressed issues arising from accession protocols. However, Panel and Appellate Body reports have reached discordant results regarding how and when a Member’s rights under the Multilateral Trade Agreements, apply to accession protocol obligations. China’s Accession Protocol provides valuable insight into the emerging legal relationship between accession protocols and the Multilateral Trade Agreements, as it is the first non-standard, and most disputed, accession protocol. This Note concludes that permitting application of GATT Art. XX and GATS Art. XIV, simplifies legal issues underlying WTO disputes, comports with interpretation under the Vienna Convention on the Law of Treaties (“VCLT”), and balances the obligations of existing WTO members with the expectations of entering members.


I. Introduction

Since the inception of the WTO in 1995, 29 governments have acceded to and become members of the WTO. Currently, another 26 candidate governments are under consideration and as many as 35 percent of future WTO Members could enter through the accessions process. Through accession, new obligations may be imposed on applicant governments. While legitimate and permissible under the Marrakesh Agreement, the use of accession protocols as the means to create these new obligations results in a complex legal relationship between accession protocols and the Multilateral Trade Agreements.

Further complicating the relationship between the Multilateral Trade Agreements and accession protocols is the unclear and convoluted language that is used to define these new obligations in accession protocols. Understanding this relationship between the Multilateral Trade Agreements and accession protocols is critical next step as Members seek to enforce these obligations in Dispute Settlement Body (“DSB” ) proceedings.

Underlying these disputes over accession protocol obligations is confusion over whether the general exceptions made available under the Multilateral Trade Agreements, such as GATT Article XX and GATS Article XIV, apply to accession protocol obligations.

To date, few WTO disputes have addressed issues arising from accession protocols. However, Panel and Appellate Body reports have reached discordant results regarding how and when a Member’s rights, under the Multilateral Trade Agreements, apply to accession protocol obligations.

China’s Accession Protocol provides valuable insight into the emerging legal relationship between accession protocols and the Multilateral Trade Agreements, as it is the first non-standard, and most disputed, accession protocol.

Section I addresses the legal relationship between the Multilateral Trade Agreements and accession protocols. Section I also discusses the legal structure of the general exceptions and accession protocols, with particular emphasis on China. Section II details relevant WTO disputes involving accession protocols, GATT Art. XX and GATS Art. XIV. Section III discusses the advantages of uniform application of GATT Art. XX and GATS Art. XIV to accession protocols.

This Note concludes that permitting application of GATT Art. XX and GATS Art. XIV, simplifies legal issues underlying WTO disputes, comports with interpretation under the Vienna Convention on the Law of Treaties (“VCLT”), and balances the obligations of existing WTO members with the expectations of entering members.