Reconciling WTO General Exceptions with China's Accession Protocol

AuthorThomas H. Au
Pages97-125
AU (DO NOT DELETE) 2013-9-7 9:57 AM
2013] WTO GENERAL EXCEPTIONS 97
RECONCILING WTO GENERAL EXCEPTIONS WITH CHINA’S
ACCESSION PROTOCOL
Thomas H. Au
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? Sp ecifically, 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 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 Appellat e Body
reports have reached discordant results regarding how and when a Members rights under the
Multilateral Trade Agreements, apply to accession protocol obligations. Chinas 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.Thi s 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 Treati es (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 governments1 have
acceded to and become members of the WTO.2 Currently, another 26
candidate governments3 are under consideration4 and as many as 35
percent of future WTO Members could enter through the accessions
process. 5 Through accession, new obligations may be imposed on
applicant governments.6 While legitimate and permissible under the
Marrakesh Agreement, 7
1 Members and Observers, WTO.ORG,
http://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm (last visited Dec. 3, 2012) (this
equates to 18% of Members).
the use of accession protocols as the means
2 Accessions, WTO.ORG, http://www.wto.org/english/thewto_e/acc_e/acc_e.htm (last visit ed Dec.
3, 2012).
3 The term “government” in this note means the state or separat e customs territory that is seeking to
join the WTO pursuant to Art. XII of the Marrakesh Agreement Establishing the World Trade
Organization, Apr. 15, 1994, 1867 U.N.T.S. 154 [hereinafter Marrakesh Agreement]. Governments
party to the WTO Agreement s are referred to as Members.
4 Id.
5 Steve Charnovitz, Map ping the Law of WTO Accession (George Washington University Law
School Public Law and Legal Theory Working Paper No. 237 Legal Studies Research Paper No. 237,
2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957651.
6 Jolita Butkeviciene ET AL,. Terms of WTO Accession, in UNCTAD, WTO Accessions and
Development Polices , UNCTAG, DITC/TNCD/11 (2001) at 37.
7 MARRAKESH AGREEMENT, supra note 3 at Art. XII.
AU (DO NOT DELETE) 2013-9-7 9:57 AM
98 TSINGHUA CHINA LAW REVIEW [Vol. 5:95
to create these new obligations results in a complex legal relationship
between accession protocols and the Multilateral Trade Agreements.8
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
9) proceedings.10
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,
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.
11
8 The WTO Agreements consi st of the Marrakesh Agreem ent, supra note 3, the General
Agreement on Tariffs and Trade, Apr. 15, 1994, WTO Agreement, Annex 1A, in the Results of the
Uruguay Round of Multilateral Trade Negotiations: the Legal Texts 21 (1995), 33 I.L.M. 1154
(1994), [hereinafter GATT or GATT ‘94 ], the General Agreemen t on Trade in Services, Apr. 15,
1994, WTO Agreement, Annex 1B, in the Results of the Uruguay Round of Multilateral Trad e
Negotiations: the Legal Texts 325 (1995), 33 I.L.M. 1168 (1994), [hereinafter GATS], the Agreement
on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Annex 1C in the Results of
the Uruguay Round of Multilateral Trade Negotiations: the Legal Texts 365, 33 I.L.M. 1197 (1994)
[hereinafter TRIPs] and the Understanding on Rules and Procedures Governing the Settlement of
Disputes, Dec. 15, 1993, Marrakesh Agreement Establishing the World Trade Organization, Annex 2,
Legal Texts--The Results of the Uruguay Round of Multilateral Trade Negotiations, 33 I.L.M. 112
(1994) [hereinafter DSU].
9 The DSB may refer to eit her a WTO Panel or the W TO Appellate Body. Se e RICHARD K.
GARDINER, TREATY INTERPRETATION 116-19 (2012 ).
10 Anna Lanoszka, The World Trade Organization Accession Process, 35 J. WORLD TRADE 575,
583 (2001).
11 [T]he general concept of WTO ‘rights’ is difficult to comprehend. If by WTO rights, one means
the procedural right to invoke dispute settlement so as to allege a violation (or a non-violation that
nullifies and impairs), then that usage is unobjectionable. If by WTO rights, one means that a WTO
member has a right to expect other WTO members to adhere to their obligations under WTO law, then
that usage is comprehensible, but would seem to be noting an intended beneficiary of the WTO law
obligation. But if by WTO righ ts, one means that a WTO member has a su bstantive right to a defined
trade benefit or resu lt like an export, then that usage seems unjustified under WTO law because most
rules are qualified by exceptions.
under the Multilateral Trade Agreements, apply to accession
protocol obligations.
11 [T]he general concept of WTO ‘rights’ is difficult to comprehend. If by WTO rights, one means
the procedural right to invoke dispute settlement so as to allege a violation (or a non-violati on that
nullifies and impairs), then that usage is unobjectionable. If by WTO rights, one means that a WTO
member has a right to expect other WTO members to adhere to their obligation s under WTO law, then
that usage is comprehensible, but would seem to be noting an intended beneficiary of the WTO law
obligation. But if by WTO righ ts, one means that a WTO member has a su bstantive right to a defined

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