Flesh on a Legal Fiction: Early Practice in the WTO on Accession Protocols

Journal of International Economic Law, Vol. 15, Issue 2, pp. 391-441, 2012

Posted: 8 Jan 2013

Date Written: May 1, 2012

Abstract

The World Trade Organization has recently seen a spate of disputes over provisions in an unfamiliar instrument, the Protocol of Accession. While the process of accession to the WTO is traditionally an intensely political, secretive and often protracted one, this paper focuses on the novel legal implications of modern-day Protocols of Accession on the entirety of the WTO legal machinery. It seeks to shine light on the clandestine manoeuvrings of the accession process that are fracturing the single undertaking of rules in the WTO.

Valuable work done by commentators thus far, including Steve Charnovitz and Julia Qin, has provided a reservoir of information about the content of certain Protocols of Accession and the divergence from the common law of the WTO (WTO-plus or WTO-minus provisions in Protocols of Accession). This paper builds on that work by examining the recent troubling dispute settlement activity in the realm of Protocols of Accession. It seeks to introduce a scrutiny of the legality of certain provisions of the AP. This is in response to the unexpected modifications to the WTO single undertaking dealt by certain provisions of the Protocols of Accession.

Part I of the paper introduces the mechanism of accession and explains some of the reasons for concern that precipitated this study. Part II canvasses the recent dispute settlement activity and notes its lacking contribution with respect to the legal status, ambit and operation of provisions in Protocols of Accession. Part III offers characterizations of provisions in Protocols of Accession in an effort to fill the lacuna left by recent decisions in the WTO. It argues that the true effect of certain provisions in Protocols of Accession is aptly described as an ‘impermissible reservation’ to WTO agreements. In this regard the paper analyzes and critiques the recent work of the International Law Commission on Reservations.

Keywords: WTO, accession, protocol of accession, reservations, ILC, single undertaking

JEL Classification: K33

Suggested Citation

Tyagi, Mitali, Flesh on a Legal Fiction: Early Practice in the WTO on Accession Protocols (May 1, 2012). Journal of International Economic Law, Vol. 15, Issue 2, pp. 391-441, 2012, Available at SSRN: https://ssrn.com/abstract=2198080

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