Mind the Gap: Navigating between the WTO Agreement and Its Accession Protocols
41 Pages Posted: 4 Feb 2016 Last revised: 19 Feb 2016
Date Written: February 2, 2016
Since its inception in 1995, the World Trade Organization has prescribed numerous country-specific rules for its acceded members. Set out in WTO accession protocols, the country-specific rules elaborate, expand or derogate from the standard provisions of the WTO Agreement. Despite this practice, the precise status of the accession protocols and their relationship with the WTO multilateral agreements remain unclear. In the past decade, accession protocols have given rise to claims in more than twenty WTO disputes, most of them involving China. Due to the lack of textual guidance, WTO adjudicators have had to fill large gaps in interpreting the relationship between the accession provisions and the provisions of WTO multilateral agreements. Judicial interpretations hitherto, however, have not succeeded in clarifying such relationship. In some cases, they have led to problematic jurisprudence, creating systemic incoherence and inconsistencies in WTO law and policy.
This article provides an overview of the WTO disputes involving accession protocols, and analyzes the fraught relationship between accession protocols and WTO multilateral agreements. At the systemic level, it questions the commonly accepted legal basis for country-specific rulemaking under WTO law, and advocates the need to focus on systemic coherence in navigating between the WTO Agreement and its accession protocols. To achieve systemic coherence, it is proposed that tools of conflict rules should be utilized in interpreting the relationship between country-specific rules and general WTO provisions, and that any gaps and ambiguities in the text of accession provisions should be construed in a way that will preserve WTO’s fundamental principle of nondiscrimination. The article further addresses four specific interpretive issues: (i) how to determine the availability of general exceptions of WTO agreements to country-specific obligations; (ii) how to determine the scope of derogation from WTO provisions by the country-specific rules; (iii) relevance of accession protocols to the interpretation of WTO multilateral agreements; and (iv) relevance of the accession protocol of one member to the interpretation of the accession protocol of another member.
Keywords: WTO law, WTO dispute settlement, accession protocols, WTO jurisprudence, Vienna Convention on the Law of Treaties, treaty interpretation, Appellate Body, systemic coherence, conflict rules, WTO-plus, WTO-minus, public body, nonmarket economy, China
JEL Classification: K33
Suggested Citation: Suggested Citation