* Professor, Boston College Law School. This Article was first delivered as a paper at the 2002 Trade and Development Conference sponsored by the International Economic Law Interest Group of the American Society of International Law. My thanks to the conference participants for their helpful questions and comments. Portions of this essay were presented at a Reflection Group Meeting on Special and Differential Treatment with Special Reference to Small Economies, sponsored by the Caribbean Regional Negotiating Machinery, September 5–6, 2002. I would like to thank the RNM for the invitation to participate, and for the full and frank exchange of views at that meeting. I would also like to thank Ms. Soohyun Jun, Graduate Research Fellow at the Boston College Law School, for her invaluable comments and research assistance. Finally, thanks to the Boston College International & Comparative Law Review for publishing the Conference papers as a symposium. I would like to dedicate this Article to the memory of Robert Hudec, whose work has taught and inspired me.
1 On these risks and vulnerabilities, see generally Frank J. Garcia, Trade Inequality and Justice (2003); Dermot McCann, Small States in Globalizing Markets: The End of National Economic Sovereignty?, 34 N.Y.U. J. Int’l L. & Pol. 281 (2001).
2 See Dilip K. Das, Debacle at Seattle: The Way the Cookie Crumbled, 34 J. World Trade 181, 190–93 (2000) (discussing factors contributing to Seattle failure).
3 WTO Ministerial Conference, Fourth Session, Ministerial Declaration, WT/MIN(01)/ DEC/1 (Nov. 20, 2001) [hereinafter Doha Declaration].
4 WTO Ministerial Conference, Fourth Session, Implementation-Related Issues and Concerns, WT/MIN(01)/17 (Nov. 20, 2001) [hereinafter Implementation Decision].
5 See, e.g., Raj Bhala, Poverty, Islam and Doha: Unmet Challenges Facing American Trade Law, 36 Int’l Law. 159, 165–67 and sources cited therein (2002).
6 The WTO Under Fire, The Economist, Sept. 20, 2003, at 26–28.
7 Prior to the beginning of GATT negotiations in 1946, there was no mention of S&D in any trade agreement. Robert E. Hudec, GATT and the Developing Countries, 1992 Colum. Bus. L. Rev. 67, 68 (1992). Although developing countries participated in the Havana negotiations, there was no formal recognition of them as a group or of their special needs in the eventual GATT 1947 text. Constantine Michalopoulos, The Role of Special and Differential Treatment for Developing Countries in GATT and the World Trade Organization 2–3 (World Bank, Pol’y Res. Working Paper Series No. 2388, 2000).
8 See Hudec, supra note 7, at 69 (“minimal” recognition of S&D in GATT 1947 was of “little practical value”). GATT Article XVIII did allow exceptions for support of developing industries, but the provisions were not unique to developing countries and required prior approval. In part for this reason, developing countries made more frequent recourse in the early 1950s to balance-of-payments-based exceptions under Article XII, which did not require prior approval but were also not specifically tailored to developing countries. See John H. Jackson, World Trade and the Law of GATT 639 (1969).
9 Pioneering studies included Jacob Viner, International Trade and Economic Development 120–50 (1952); Gunnar Myrdal, An International Economy: Problems and Prospects (1956); and Albert O. Hirschman, The Strategy of Economic Development (1958).
10 Hudec notes that by 1960 developing country membership in GATT had increased by 50%. This accelerated during the 1960s due to the admission of newly independent states, so that by 1970 75% of GATT membership consisted of developing countries. Hudec, supra note 7, at 70–71.
11 See generally Jackson, supra note 8, ch. 25.
12 Id. at 638–40; see also General Agreement on Tariffs and Trade, Oct. 30, 1947, art. XVIII, 61 Stat. A-11, T.I.A.S. 1700, 55 U.N.T.S. 194 [hereinafter GATT].
13 Jackson, supra note 8, at 221.
14 GATT, supra note 12, art. XXVIIIbis, para. 3(b).
15 When GATT parties act officially and in concert, the treaty refers to them as “Contracting Parties.” Philip M. Nichols, GATT Doctrine, 36 Va. J. Int’l L. 379, 390 n.58 (1996) (explaining “Contracting Parties”).
16 Differential and More Favorable Treatment, Reciprocity and Fuller Participation of Developing Countries (Nov. 28, 1979), GATT B.I.S.D. (26th Supp.) at 203 (1980) [hereinafter Enabling Clause].
17 See, e.g., Kele Onyejekwe, International Law of Trade Preferences: Emanations from the European Union and the United States, 26 St. Mary’s L.J. 425, 454 (1995) (Enabling Clause established permanent legal framework for S&D).
18 The GSP, or Generalized System Preferences, is a voluntary system of trade preferences first articulated by the U.N. Conference on Trade and Development. See Hudec, supra note 7, at 72.
19 This expands upon the more limited nonreciprocity cited in Article XXXVI.8 of Part IV of the GATT, supra note 12 (“The developed contracting parties do not expect reciprocity for commitments made by them in trade negotiations to reduce or remove tariffs and other barriers to the trade of less-developed contracting parties.”). Paragraph 5 of the Enabling Clause, supra note 16, adds “i.e., the developed countries do not expect the developing countries, in the course of trade negotiations, to make contributions which are inconsistent with their individual development, financial and trade needs. Developed contracting parties shall therefore not seek, neither shall less-developed contracting parties be required to make, concessions that are inconsistent with the latter’s’ development, financial and trade needs.”
20 The single-undertaking approach did not include plurilateral disciplines in Annex IV to the WTO Agreement, such as the Agreement on Trade in Civil Aircraft, of interest to a small minority of states.
21 John H. Jackson et al., Legal Problems of International Economic Relations 214–15 (2002)(discussing Tokyo Round flaws).
22 Hudec, supra note 7, at 76.
23 WTO documents cite the existence of 145 S&D provisions throughout the WTO Agreements. The WTO Secretariat has divided these provisions into six categories based on their function. See CTD, Implementation of Special and Differential Treatment Provisions in WTO Agreements and Decisions, WT/COMTD/W/77 (Oct. 25, 2000) [hereinafter CTD, S&D Provisions]. These categories are (paraphrasing slightly): (i) provisions aimed at increasing trade opportunities (12); (ii) provisions under which Members should safeguard developing country interests (49); (iii) provisions offering flexibility of commitments (30); (iv) transitional time periods (18); (v) technical assistance (14); and (vi) provisions relating to least developed countries (22). These can still be broken down into three main groups: market access, market protection, and technical assistance.
24 See, e.g., Kiichiro Fukasaku, Special and Differential Treatment for Developing Countries: Does It Help Those Who Help Themselves? (U.N. U. World Inst. for Dev. Econ. Res., Working Paper No. 197, 2000) (Uruguay Round marked a “clear departure” from traditional nonreciprocity approach); McCann, supra note 1, at 291 (Uruguay Round signaled “a clear movement away from a permanent lower level of obligation for developing states”).
25 See Michalopoulos, supra note 7, at 9–12 (developing countries were re-thinking economic models of trade and development).
26 See id. at 14 (without formally abandoning the principle of nonreciprocity, developing countries changed their past approach and increased concessions); Hudec, supra note 7, at 75–77 (developing countries viewed increased access in key sectors as compensation for both Uruguay Round concessions and prior trade liberalization reforms).
27 See Hudec, supra note 7, at 75–77. See generally Asoke Mukerji, Developing Countries and the WTO: Issues of Implementation, 34 J. World Trade 33, 39–64 (2000) (assessing the implementation of WTO agreements); Bonapas Onguglo & Taisuke Ito, Proposed Legal Regime Within the World Trade Organization on Enhanced Market Access Conditions for Least Developed Countries, in Legal Aspects of International Trade 15 (World Bank ed., 2001), available at http://www4.worldbank.org/legal/publications/trade.pdf.
28 J. Michael Finger & Julio J. Nogués, The Unbalanced Uruguay Round Outcome: The New Areas in Future WTO Negotiations 3–4 (World Bank, Pol’y Res. Working Paper Series No. 2732, 2001) (analyzing agriculture and textile sector results).
29 Michalopoulos, supra note 7, at 17–18.
30 See id. at 15.
31 Finger & Nogués, supra note 28, at 1.
32 Id. at 12 (reporting scarcity of accurate data on affected sectors).
33 Id. at 13–14.
34 Id. at 1.
35 See infra Part II.B.2 for a discussion of the inadequacy of current implementation periods.
36 See infra Part II.B.3 for a discussion of the inadequacy of the technical assistance regime.
37 See infra Part II.B.1 for a discussion of obstacles developed countries have maintained to developing country trade.
38 See Finger & Nogués, supra note 28, at 1 (“Decisions in the new [WTO agenda] areas should be structured as development/investment decisions—development issues to which a trade dimension can be fitted, not the other way around.”) (emphasis added).
39 As one Caribbean trade negotiator has remarked in the author’s presence, the Christians and the lions did after all meet on a level playing field in the Coliseum, and we all know how that came out.
40 See, e.g., Jagdish Bhagwati & T.N. Srinivasan, Trade and Poverty in the Poor Countries, Am. Econ. Rev. Papers & Proceedings, May 2002, http://www.columbia.edu/~jb38/
paper2001/AEA%20Trade%20and%20Poverty%20in%20the%20Poor%20Countries.pdf; Bhala, supra note 5, at 168–69 (summarizing economic arguments).
41 See, e.g., Ha-Joon Chang, Kicking Away the Ladder (2002) (arguing that developed economies pursued aggressive industrial policy strategies, including infant industry and export subsidy measures, in their own development rather than the free trade ideology they now espouse); J. Michael Finger & Philip Schuler, Implementation of Uruguay Round Commitments: The Development Challenge 25 (World Bank, Pol’y Res. Working Paper Series No. 2215, 1999), http://econ.worldbank.org/docs/941.pdf (suggesting that international trade negotiations are inappropriate remedies for development issues).
42 Mukerji, supra note 27, at 35.
43 On the dangers inherent in “governance through ideology” within Bretton Woods Institutions, see Joseph E. Stiglitz, Globalism’s Discontents, The American Prospect, Jan. 1–14, 2002.
44 See McCann, supra note 1, at 292 (“[T]he terms and operation of the WTO regime place major restrictions on the policy autonomy of small states without offering any corresponding enhancement of their ability to shape the evolution of the global trade system.”).
45 See Garcia, supra note 1, at 67–86.
46 For a fuller statement of this approach, see generally Garcia, supra note 1. See also Joel P. Trachtman, Legal Aspects of a Poverty Agenda at the WTO: Trade Law and “Global Apartheid,” J. Int’l Econ. L. (2003) (WTO has essential role to play in addressing poverty as a primary agenda).
47 See generally Mukerji, supra note 27, at 39–48.
48 See generally U.S. Customs Service, NAFTA for Textiles and Textile Articles (2000), available at http://www.exportimportlaw.com/FPF/NAFTAtextiles.pdf (discussing in the context of NAFTA the operation of rules of origin for textiles).
49 Stefano Inama, Trade Preferences and the WTO Negotiations on Market Access, 37 J. World Trade 959, 968–70 (2003)(citing effect of rules of origin in under-utilization of favorable tariff preferences).
50 Cancun’s Charming Outcome, The Economist, Sept. 20, 2003, at 11–12.
51 See generally Arie Reich, Institutional and Substantive Reform of the Anti-Dumping and Subsidy Agreements, 37 J. World Trade 1037 (2003) (surveying defects in AD/CVD rules rendering them susceptible to protectionist abuse).
52 See generally Garcia, supra note 1.
53 See Bonapas Onguglo, Developing Countries and Trade Preferences, in Trade Rules in the Making 118–20 (Mendoza et. al eds., 1999) (surveying deficiencies in preferential trade).
54 See id. at 120–21. Alternative proposals include more aggressive improvements to existing preference regimes. See, e.g., Inama, supra note 49, at 974–76 (surveying possible structural improvements).
55 See Garcia, supra note 1, at 156–58.
56 Doha Declaration, supra note 3, ¶ 42.
57 See Directorate General of Trade, European Commission, Everything But Arms (EBA) Initiative, http://europa.eu.int/comm/trade/issues/global/gsp/eba/index_en.htm (last visited Apr. 1, 2004).
58 Id.
59 See Reich, supra note 51.
60 Implementation Decision, supra note 4, ¶ 4.2.
61 Agreement on Subsidies and Countervailing Measures, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO Agreement], Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter SCM Agreement].
62 See Garcia, supra note 1, at 179–81 (discussing defects in extension procedure).
63 General Agreement on Trade in Services, Apr. 15, 1994, WTO Agreement, supra note 61, Annex 1B, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter GATS].
64 See Aristotle, Nichomachean Ethics, in Introduction to Aristotle 402–04 (Richard McKeon ed., 1974).
65 See Garcia, supra note 1, at 175, 181–82.
66 Developing countries should nevertheless press for an exemption for new agricultural export subsidies, which both the SCM and Agriculture Agreements prohibit. They should also press for a new category of development-related subsidies in the SCM Agreement.
67 General Council, Proposal for a Framework Agreement on Special and Differential Treatment, WT/GC/W/442, ¶ 15 (Sept. 19, 2001).
68 CTD, Communication from the EC, TN/CTD/W/13, ¶¶ 4–6, 12–13 (Aug. 1, 2002).
69 CTD, Joint Communication from the African Group in the WTO-Revision, TN/CTD/
W/3/Rev.1, ¶¶ 23–24 (June 24, 2002).
70 See generally Thomas C. Beierle, From Uruguay to Doha: Agricultural Trade Negotiations at the World Trade Organization (Resources for the Future, Discussion Paper No. 02-13, 2002), available at http://www.rff.org/rff/Documents/RFF-DP-02-13.pdf.
71 For a fuller exposition of this imperative, see Garcia, supra note 1, at 188–90.
72 See Fukasaku, supra note 24, at 18–19.
73 See infra Part II.C.1 for examples of “best endeavor” clauses.
74 See World Trade Organization, The Integrated Framework for Least Developed Countries, at www.wto.org/english/tratop_e/devel_e/teccop_e/if_e.htm (last visited Apr. 15, 2004).
75 See Subcommittee on LDCs, Progress Report on the Integrated Framework for Trade-Related Technical Assistance, Report by the Director General, WT/LDC/SWG/IF/17/Rev.1 (Apr. 17, 2001).
76 Id.
77 See Bhala, supra note 5, at 166.
78 Doha Declaration, supra note 3, ¶ 44.
79 Id. ¶ 12.1.
80 See CTD, S&D Provisions, supra note 23, ¶ 3.
81 Enabling Clause, supra note 16, para. 1 (emphasis added).
82 Agreement on the Application of Sanitary and Phytosanitary Measures, Apr. 15, 1994, art. 9.1, WTO Agreement, supra note 61, Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) (emphasis added) [hereinafter SPS Agreement].
83 GATT, supra note 12, art. XXXVII.1 (emphasis added).
84 Implementation Decision, supra note 4, ¶ 2.1 (emphasis added).
85 See id. ¶ 4.2 (emphasis added).
86 SPS Agreement, supra note 82, art. 10.1 (emphasis added).
87 SCM Agreement, supra note 61, art. 27.2.b.
88 See WTO Report of the Panel, Brazil—Export Financing Programme for Aircraft, WT/DS46/R, ¶¶ 4.157, 7.49–.51 (Apr. 14, 1999). The case involved the right of developing Members to provide subsidies for an eight-year period under Article 27 of the SCM Agreement. See id.
89 Implementation Decision, supra note 4, ¶ 12.1.
90 See Enabling Clause, supra note 16, para. 1.
91 Implementation Decision, supra note 4, ¶ 2.1 (emphasis added).
92 CTD, Communication from India, TN/CTD/W/6 (June 17, 2002) [hereinafter Communication from India].
93 Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, art. 4.10, WTO Agreement, supra note 61, Annex 2, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1226 (1994) (emphasis added) [hereinafter DSU].
94 Communication from India, supra note 92, at 3.
95 Id. at 3–4.
96 Id. at 4.
97 WTO Appellate Body Report on European Communities—Anti-Dumping Duties on Imports of Cotton-Type Bed Linen from India, WT/DS141/R (Oct. 30, 2000).
98 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, Apr. 15, 1994, art. 15, WTO Agreement, supra note 61, Annex 1A, Legal Instruments—Results of the Uruguay Round, 33 I.L.M. 1125 (1994) (emphasis added) [hereinafter Anti-Dumping Agreement].
99 This experience suggests a positive role for judicial elaboration of enforceable standards in interpreting weak S&D language. However, while this is a notable success for India and for developing Members generally with respect to the enforceability of S&D provisions, it should not be taken to mean that “best endeavor” clauses of this sort are now clearly enforceable without further change. Since there is, formally speaking, no stare decisis in WTO case law, the Bed Linen decision has no binding effect in formal terms on the interpretation of any other similar provision in any future proceedings before a WTO panel. Therefore, the need for the sort of amendment India proposes for Article 4.10 of the DSU remains unaffected.
100 DSU, supra note 93, art. 21.2 (emphasis added).
101 Communication from India, supra note 92, at 4.
102 Id.
103 Trade law already plays a redistributive role, for example, through S&D. See Garcia, supra note 1 (discussing distributive aspects of preferential trade policy).
104 See Garcia, supra note 1, at 207–10 (arguing for the move to more explicitly redistributive policies as the next generation of trade and development policy). See generally Jon Mandle, Globalization and Justice, 570 Annals Am. Acad. Pol. & Soc. Sci. 126 (2000) (just globalization requires wealth redistribution); Trachtman, supra note 46 (need for institutional reform in international law to support redistributive obligations).