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Hart, Natasha --- "Special And Differential Treatment At The World Trade Organisation: A Case Of Limited Results And Misconstrued Arguments?" [2018] WAStuLawRw 1; (2018) 2 Western Australian Student Law Review 4


Natasha Hart[*]

Special and Differential Treatment—World Trade Organisation—General agreement on Tariffs and Trade—Developing Countries—Least Developed Countries—Principle of Equality Among States

Providing Special and Differential Treatment (‘SDT’) to countries throughout the multilateral trading system is a cornerstone of the World Trade Organisation’s operations. This article examines the SDT provisions contained in pt IV, Article XVIII and the Enabling Clause of the General Agreement on Tariffs and Trade 1994. Despite operating for 57 years, SDT has been largely ineffectual in achieving its purpose of improving standards of living in developing countries, as they are non-binding and manipulated by developed countries. The article goes on to explore the application of the principle of equality among states to the provisions. It contends that, although opponents argue that affording developing countries special treatment undermines the principle of equality, an improved level of equality between states may be achieved through SDT, which operates to counterbalance the superior leveraging power of states with greater economic weight in the international community.


A World Bank economist has described the World Trade Organisation’s (‘WTO’) attempts to include developing countries in the multilateral trading system as ‘heartfelt but ill-defined and ultimately fruitless’.[1]It has been nearly 60 years since the codification of the concept that developing countries should be afforded SDT in the context of international trade began.[2] This position is now reflected in the General Agreement on Tariffs and Trade 1994 (‘GATT 1994’), the constituent document of the WTO.[3] In practice, SDT provisions encourage developed countries to remove trade barriers that affect developing countries to assist in raising the standards of living in those countries. ‘Goal 10’ of the United Nations Sustainable Development Goals (2017) calls on developed countries to implement SDT provisions to reduce inequality within and among countries,[4]demonstrating the international community’s continued recognition of their importance in the multilateral trading system. Despite provisions allowing special treatment, developing countries claim they are unable to utilise SDT provisions adequately and that their effect is minimal.[5]

This article analyses the legal foundation of SDT, as well as the effect—or lack thereof—of those provisions. It is argued that the majority of the SDT provisions have a negligible impact due to their non-binding nature and the systemic manipulation by developed countries. The ‘principle of equality of states’, upon which many opponents of SDT often rely, is explored. If all countries are sovereign equals in the international system, why is special treatment needed in respect of certain states?

This article seeks to demonstrate that SDT, by its very nature, supports the principle of equality among states: it allows developing countries to move closer to a balance of rights and duties at the WTO. It concludes that amendments should be made to the SDT provisions to ensure they are binding and not subject to manipulation. Such amendments are essential if the WTO wishes to fulfil its objective of liberalising trade to advance standards of living.[6]


To understand SDT provisions, one must examine the WTO and the obligations it imposes upon its 162 member states. The WTO is an international organisation, established with the key purpose of raising standards of living in its member states by promoting trade liberalisation through reducing trade barriers.[7] The WTO and its Secretariat were established in April 1994 at the conclusion of the Uruguay Round under the Marrakesh Agreement.[8] The Marrakesh Agreement encompasses multilateral agreements regarding trade in goods,[9] services,[10] and intellectual property.[11] It also created the Dispute Settlement Understanding[12] (‘DSU’), the WTO’s own dispute settlement system, which aims to provide security and predictability to members when engaging in multilateral trade through affirmative dispute resolution.[13] Original and acceding states or territories are bound by all multilateral trade agreements of the WTO.[14] If states disregard binding provisions in WTO agreements, action can be taken under the DSU. Consequently, WTO instruments are often considered to exemplify ‘hard’ international law.[15]

Under the DSU, the WTO’s own ‘court’ is the Appellate Body. If their decisions are ignored, retaliation against the contravening state’s analogous sector is allowed. Thus, although their decisions are non-binding, the principle of retaliation is a strong enforcement mechanism.[16] For instance, when the European Union ignored a decision of the Appellate Body concerning their refusal to import beef from the United States, the United States was able to impose high tariffs on French wine and cheese, amounting to over US$11 million a year.[17]

The first fundamental pillar of the WTO’s operations is the principle of non-discrimination.[18] Non-discrimination has two limbs: (1) the national treatment rule; and (2) the most favoured nation rule. The national treatment rule requires that members treat imported and locally produced products, services and intellectual property equally after they have entered the market.[19] For instance, under the GATT 1994, if imported products are ‘like products,’[20]or ‘directly competitive or substitutable’[21](when compared to the locally produced product), then they should not be subject to direct or indirect taxes that exceed those applying to the domestic product.[22] National treatment operates to ensure that a contracting party cannot use taxes, charges, laws or regulations to protect their domestic products or discriminate against products based on the nation they are imported from.[23]By way of example, minimum price requirements imposed by Canada on imported beer have been found to have violated this obligation.[24] This is because by imposing regulations on imported beer, but not on beer produced domestically, Canada was providing preferential treatment to a domestic ‘like product’. The minimum price requirements operated as a discriminatory regulation, contrary to the national treatment rule.

The second limb of the non-discrimination obligation is the most favoured nation principle. This limb requires member states to grant ‘any advantage, favour, privilege or immunity’ to like products, services and intellectual property, ‘immediately and unconditionally’ to all WTO members.[25] The existence of the most favoured nation rule essentially results in one contracting country agreeing to treat the other contracting country as the ‘most favoured nation’, within their territory, by giving it all the benefits offered to any other country.[26] For example, the imposition of varying tariffs on automobiles from different member states was found to breach the most favoured nation principle.[27] This is because varying tariffs made it easier for some states to break into the market of importing and more difficult for others, thereby contradicting the non-discrimination obligation.

The second pillar of the WTO is the principle of reciprocity. Reciprocity ensures that trade negotiations (including negotiations regarding tariffs)[28] are conducted on a ‘reciprocal and mutually advantageous basis’.[29] Essentially, although it is a multilateral institution, the WTO adopts a ‘bilateral approach to multilateral bargaining’.[30] Countries will negotiate bilaterally, or in smaller groups, over tariffs. The results of these negotiations are then subject to the non-discrimination requirement as set out in GATT 1994, which ensures that the tariffs abide by the most favoured nation principle.[31] However, the positive obligations of non-discrimination and reciprocity are to be overlooked upon the provision of special treatment to developing countries.

A Developmental status

WTO members self-attribute their developmental status.[32] Over half of the WTO’s members have endorsed themselves as developing countries, including India, China, Brazil, Mexico, Nepal, and Turkey.[33]While controversy surrounding the sizeable nature of some developing countries’ economies is common, that controversy does not fall within the scope of this article.

The WTO recognises the United Nation’s list of least developed countries, which comprises of 34 members including states such as Haiti, Yemen, and Zambia.[34] Although the majority of the WTO’s members are either developing countries or least developed countries, they account for only a relatively small proportion of the growth in world trade (with the exception of the BRIC countries: Brazil, Russia, India and China).[35]

B What is special and differential treatment?

SDT provisions which were first incorporated into the GATT 1994, are now contained in 145 WTO agreements and are recognised as a ‘cornerstone’ of the multilateral trading system.[36] In theory, SDT affords developing countries a right to be treated more favourably than other WTO members, contrary to the non-discrimination principle. The WTO Secretariat cites developing countries’ small economies, ‘weak’ governments, and resource constraints as factors which necessitate SDT.[37] Article XVIII, pt IV and the Enabling Clause of the GATT 1994 are the largest and most commonly relied upon SDT provisions.[38]These provisions are analysed below, highlighting that the practical benefits intended to accrue to developing countries through the SDT provisions are virtually non-existent in reality.

1 GATT 1994 art XVIII

The preamble to the GATT 1994 art XVIII provides that its purpose is to facilitate the progressive development of countries that have low standards of living and are in the early stages of development by supporting their infant industries.[39] Article XVIII is then divided into three sub-provisions: art XXVII:A; art XXVII:B; and art XXVII:C. Each provision’s effect on assisting developing countries differs, as examined below.

The SDT Provisions contained in art XXVII:A and XXVII:C of the GATT 1994 have had essentially no effect on assisting developing countries. Article XVIII:A allows developing countries to renegotiate or remove tariff bindings to promote the establishment of a particular domestic industry.[40] Article XVIII:C allows developing members to promote the establishment of a particular industry through the implementation of measures inconsistent with provisions of the GATT 1994, such as the use of quotas or discriminatory minimum price requirements.[41]

In theory, both of these articles could afford developing countries significant power to protect their domestic industries while they are being established. However, in order to utilise art XVIII:A and art XVIII:C, adequate compensation must be provided to the affected industries.[42] Article XVIII:A has not been invoked since 1967, and as such, it appears to have little relevance to modern trade law.[43] Similarly, art XVIII:C has little effect given that it has only been raised three times (each time unsuccessfully) since the establishment of the WTO.[44] In response to these difficulties, developing countries have requested that the articles become more lenient, as the requirement to pay full compensation is too onerous for their economies. It essentially prices them out of any potential benefits that would otherwise be available.[45] Thus, two of the SDT mechanisms contained in art XVIII of the GATT 1994 have been unsuccessful in assisting developing countries to raise standards of living.

The SDT provision of art XVIII:B allows for the imposition of import restrictions in order to safeguard the balance of payments.[46] This means that developing countries can protect their external financial position by restricting imports from certain countries to ensure they have reserve funds to implement programs for economic development.[47] This is contrary to a major foundation of the GATT 1994, which requires restrictions on imports to be applied in a non-discriminatory way.[48] By choosing which countries products can be imported from, the article confers significant power to developing countries. Additionally, art XVIII:B is more accessible to developing countries than those articles discussed above, as no compensation is payable to affected industries following the introduction of trade restrictions.[49] For that reason, it is an SDT provision with more potential to assist developing countries.

2 GATT 1994 pt IV

GATT 1994 pt IV was implemented in 1965, with the purpose of increasing trade opportunities for developing countries.[50] Part IV’s objective is to ensure developed countries make ‘positive efforts’ to assist developing members in securing a share of international growth.[51]It specifies that developed countries should, on a best endeavour basis, assist developing countries’ exports in primary products.[52]Thus, it aims to provide preferential treatment to developing countries to assist their export markets in growing, thereby helping developing countries achieve higher standards of living.

However, many developing countries claim that pt IV has little practical effect, as it does not impose any enforceable obligations on developed countries and cannot be given legal force through dispute settlement.[53] For example, the principle that developed countries should examine constructive remedies before applying anti-dumping duties to developing countries has been ignored.[54] Anti-dumping measures continue to be frequently imposed upon the least developed countries in the world.[55]

Following the conclusion of the Uruguay Round in 1994 and the creation of the WTO, developing countries’ economic conditions appeared to improve. The average weighted tariff on imports of industrial goods from developing countries fell by 37 per cent,[56] and the value of agricultural exports from developing countries increased by US$486 billion.[57]The WTO Secretariat asserts that these economic improvements are a direct result of GATT 1994 pt IV.[58] However, this substantial increase in trade is arguably overstated as a consequence of the inclusion of China and India’s large economies in the calculation—many countries with smaller economies have not been able to achieve anywhere near this increase.[59]

It has been asserted that art XVIII:B ‘is a weak tool to promote development’,[60] on the basis that it can lead to a rise in the price of imported goods and a resultant decline in output, productivity, and welfare.[61] Although useful, the long-term effects of art XVII:B are therefore minimal. Moreover, the DSU interpretation of the provision is stringent. In the case of India-Quantitative Restrictions,[62] the DSU held that because India was in an ‘adequate’ financial position it was unjustifiable to impose import restrictions on US products.[63] The decision reflects the Appellate Body’s unwillingness to apply a broad interpretation of the scope of Article XVIII:B in favour of developing countries. Such a strict interpretation of SDT provisions by the Appellate Body arguably contradicts the WTO’s intended objective,[64] as India is still subjected to standards of living that are far lower than those in developed countries, with the poverty rate seeing 22 per cent of the population living on less than US$1.25 a day.[65] Consequently, art XVIII:B has little practical or positive effect on developing economies.

3 Enabling clause

Part IV of the GATT 1994 provided the legal basis for a 1971 Waiver,[66] which allowed the application of tariff preferences to developing countries (regardless of the most favoured nation principle).[67] This Waiver later became the Enabling Clause,[68] which allows developed countries to afford preferential tariff treatment—such as low or no duties on imports—to products originating in developing countries in accordance with Generalized System of Trade Preference (‘GSP’) schemes.[69] It also allows least developed countries to enter into agreements with each other to reduce or eliminate trade barriers,[70] and to be afforded special treatment from other developing countries.[71] In 1999, the General Council of the WTO implemented an additional Waiver allowing developing countries to provide preferential tariff treatment to least developed countries’ goods.[72]

However, the appellate body has repeatedly interpreted the Enabling Clause in favour of developed countries, which has limited its effect. For example, in its decision in EC Tariff Preferences II,[73] the appellate body held that GSP schemes should be invoked for countries which are ‘similarly situated’ in terms of their ‘developmental, financial or trade’ needs.[74] This broad interpretation favours developed countries, which can now construe the terms to serve their own interests. Many developed countries created tight conditions allowing tariff preferences to be allocated only to specific countries,[75] based on guidelines to enforce their political or economic agendas.

The United States ambiguously defines its GSP eligibility criteria, stating that countries which ‘engage in activities that undermine the United States’ national security’ or ‘do not provide adequate protection of intellectual property rights’ are ineligible.[76] However, the United States has granted GSP schemes to countries with bad human rights records such as Rwanda,[77] while at the same time denying them to countries like Burkina Faso, which has achieved global credit for its democratic record.[78] Furthermore, the African Growth and Opportunity Act—one of the United States’ largest GSP schemes—only allows preferences to countries that ensure the United States can have additional ‘market and investment access’ in their state.[79] This manipulation of GSP schemes means they are ‘almost always built to benefit developed states’ and developing countries are usually worse off under them.[80] Consequently, it is widely accepted that GSP schemes have had little positive effect on developing countries.[81] Developing countries are instead faced with onerous obligations that are unrelated to trade due to the demands of developed countries’ economic and political agendas.[82] It can be concluded that, like the other SDT provisions, GSPs are inherently limited in their efficacy as they are not assessed objectively on the developmental needs of individual countries and are instead reliant on the economic and political interests of developed countries.

GSPs are also limited in their effect on developing countries due to poor policy design.[83] Developed countries manipulate GSP schemes by applying complicated and restrictive rules of origin to avoid extending them to larger groups of beneficiaries.[84] This is despite the 2005 Ministerial Declaration that reiterated that the rules of origin for least developed countries’ goods must be transparent, simple and must contribute to facilitating developing countries’ market access.[85] Furthermore, GSP schemes are vastly unstable as they are non-binding and can be terminated at any time.[86] For example, a GSP scheme between India and the Unites States regarding US$60 million worth of pharmaceutical products and chemicals was abruptly terminated on the grounds that India did not adequately protect intellectual property.[87] The United States Congress has also only renewed GSP schemes for very short periods of time, and often allowed them to lapse, further limiting their efficacy. For instance, in 2008, the United States Congress re-authorised the US GSP scheme for one year, and then allowed it to lapse completely in 2009.[88] The resultant uncertainty has had a negative effect on developing countries, inhibiting export-focused investment.[89] These limitations on the effect of the Enabling Clause significantly hinder the potential benefits. Snyder proposes that several reforms could improve the operation of GSP Schemes: removing temporal legislative limits and allowing the programs to operate outside a time frame would combat the problems associated with their uncertainty.[90]

Despite these limitations on the operation of the Enabling Clause, it has been asserted that GSP schemes are the most substantial and efficient SDT provisions.[91] There are now 13 developing recipients of GSP schemes and analysts have recognised that they have assisted with economic growth in beneficiary countries.[92] They have also led to more than 80 per cent of least developed countries enjoying duty and quota free market access in developed country markets.[93] This is because ‘almost all’[94] developed WTO members provide either total or near total duty free and quota free access to products originating from least developed countries.[95] These figures are significantly smaller for developing countries—in 2011, only 20 per cent of exports from developing countries entered under preferential treatment in contrast to 53 per cent of least developed countries’ exports.[96]

Moreover, developing countries have only increased their share in world merchandise trade by 3 per cent under GSP schemes over 25 years.[97]Therefore, although GSP schemes have provided some assistance to the least developed countries, their effect on developing countries has been minor. The effect of GSP schemes developing countries’ ability to break into world trade, and therefore provide assistance in supporting developing countries’ industries to raise standards of living in those countries, has been negligible.


The above analysis demonstrates that SDT provisions have little positive effect on developing countries. Generally, they are non-binding and are either ignored or manipulated by developed countries. Additionally, provisions favouring developing countries are rarely utilised due to substantial compensation costs, policy constraints and stringent DSU interpretations. In the Doha Declaration, members agreed that the SDT provisions needed to be reviewed to become more ‘precise, effective and operational’.[98] The Committee on Trade and Development was tasked with investigating avenues of reform for special treatment provisions.[99] They reached a consensus on only 14 out of 88 proposals made by developing countries and least developed countries. These proposals have ‘remained on the General Council’s Agenda’ for 14 years.[100] These proposals are centred upon two lines of argument: (1) that SDT needs to be recognised as an inherent objective of WTO; and (2) that SDT regimes should be re-established to be legally binding.[101] If the WTO is serious about fulfilling its ideal to ‘raise standards of living’ by ensuring ‘developing countries secure a share’ in economic growth,[102] these suggestions should be followed.


The principle of ‘equality among states’ is a fundamental regulator of states’ conduct in international relations. It was internationally recognised as a foundational norm of customary international law in the United Nations Charter, which provides that the United Nations is based upon ‘the principle of the sovereign equality of all its members’.[103] This principle was further explained in the Declaration on Friendly Relations Among States, which provides that ‘all States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.’[104] Essentially, international law recognises that states must sacrifice an element of their sovereignty to international law to ensure state equality exists, as they must ‘exercise their powers without infringing upon the rights of other sovereign states’.[105] Consequently, sovereign equality encompasses two principles: (1) state sovereignty; and (2) ‘state equality’, or the principle of equality among states.[106]

There is the question, then, of whether SDT undermines the principle of equality among states. That principle was founded in the natural law school of thought. Swiss philosopher Emerich de Vattel asserted that ‘a dwarf is just as much a man as a giant: a small republic is no less sovereign that the most powerful of kingdoms’.[107] This concept was aptly summarised in the Montevideo Convention on Rights and Duties of States, which specified that states are ‘equal, enjoy the same rights, and have equal capacity in their exercise’ and that such rights are dependant only upon a state’s existence as a ‘person’ under international law.[108]

This notion provides that the existence of a state must not be based on its military or economic power.[109] In international law, this means that a ‘horizontal relationship’ should exist among states,[110] or in other words, states should be assumed to be equal. If it is to be assumed that all states have equal rights and duties, it cannot be denied that SDT disregards this by granting developing countries additional rights. Cullet poses a strong argument that SDT undermines the principle of equality of states, suggesting that treaties will only be ‘just’ when they provide reciprocal obligations among states.[111] Arguably, SDT provisions deviate from this principle as they seek to achieve ‘substantive’ equality among states by granting developing countries non-reciprocal responsibilities. [112]

However, it has been asserted that SDT leads to the practical operation of equality among states.[113] The practical effects of SDT have the potential to create true equality in the international community. This is because developed states have ‘informal superior leverages and greater economic weight’ in the WTO,[114] despite the ‘one member one vote’ ‘consensus’ provisions in most formal decision making.[115]

An example of this informal leverage is found in the ‘Green Room’ process conducted on an invitation-only basis between economies that have large resources and capacitates, generally dominated by developed countries.[116] In the ‘Green Room’, countries will conduct tariff negotiations and agree on amendments they wish to add to the WTO’s constitutive instruments in private closed-door negotiations. Decisions made in the ‘Green Room’ are then conveyed to the entirety of the WTO. Developing countries assert that this leads to developed economies having disproportionately influential roles in the WTO decision-making process, arguing they are ‘coerced and stampeded’ into accepting proposals negotiated without them in the Green Room.[117] Consequently, SDT may not undermine the principle of equality of states—on the contrary, it may help remedy the imbalance of power in the WTO and achieve a closer equilibrium of rights and duties among states.[118]

Furthermore, special provisions (such as GSP schemes) do not oblige developed states to act in a specific way.[119] Instead, they provide states with the option to assist developing countries if they wish. This means that developed states retain their sovereignty when granting SDT, and so a strong argument can be made that this evidences adherence to the principle of equality of states.[120] Furthermore, the principle of equality of states is centred upon the idea that states should have equal duties.[121] As SDT provisions are non-binding and entered into by consent, developed countries are not burdened with any duties that exceed those of developing countries if they do not wish to be. This analysis refutes arguments that SDT provisions undermine the principle of equality due to their unequal provision of duties and obligations.


This article highlights the intrinsic limitations of SDT provisions contained in Article XVIII, pt IV and the Enabling Clause of the GATT 1994. SDT provisions have limited positive consequences for developing countries due to their non-binding nature and manipulation by developed countries. Taken at face value, one may assert that the SDT provisions contradict the longstanding principle of equality between states. However, this argument is a misconstruction: the provisions support the principle by allowing states at the WTO to move closer to having an equilibrium of rights and duties between states. In the words of Robert Shiller, the 2013 Nobel Prize Winner in Economics, ‘[the] most important problem we are facing now... is rising [economic] inequality’.[122] This article supports the revision of the special and differential treatment provisions to better support developing countries and limit the amount of economic inequality between states.

[*] LLB (Hons), BA, University of Notre Dame, Fremantle.

[1] Andrew D Mitchell and Tania Voon, ‘Operationalizing Special and Differential Treatment in the World Trade Organization: Game Over?’ (2009) 15 Global Governance 343, 344.

[2] General Agreement on Tariffs and Trade, opened for signature 30 October 1947 (entered into force 1 January 1948) 55 UNTS 194.

[3] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A (‘General Agreement on Tariffs and Trade 1994’).

[4] Transforming our world: the 2030 Agenda for Sustainable Development, GA Res 70/01, UNGAOR, 70th sess, Agenda Items 15 and 16 (21 October 2015) 21 [10.a]. See also The future we want, GA Res 66/288, UN GAOR, 66th sess, 123rd plen mtg, Agenda Item 19 (27 July 2012) annex, 33 referring to the need to adhere to special and differential treatment of developing countries with regards to over fishing.

[5] World Trade Report 2014 (20 October 2010) (Note by the Secretariat) 206.

[6] Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) Preamble (‘Marrakesh Agreement’).

[7] Ibid.

[8] Marrakesh Agreement art VI.

[9] GATT 1994.

[10] Marrakesh Agreement annex 1B (‘General Agreement on Trade in Services’).

[11] Marrakesh Agreement annex 1C (‘Agreement on Trade Related Aspects of Intellectual Property Rights’).

[12] Marrakesh Agreement annex 2 (‘Dispute Settlement Understanding’).

[13] Dispute Settlement Understanding art 3.2.

[14] Note that the Marrakesh Agreement art XII:1 allows customs territories to accede to the WTO, such as Taiwan; Marrakesh Agreement art II:2.

[15] Mark C Pollack and Gregory Shaffer, When Cooperation Fails: The International Law and Politics of Genetically Modified Foods (Oxford University Press, 2009) 176.

[16] Dispute Settlement Understanding art 22.3.

[17] Office of the United States Trade Representative, 2017 National Trade Estimate Report on Foreign Trade Barriers, <> 1489.

[18] See, eg, GATT 1994 pt II art III.

[19] GATT 1994 pt II art III; General Agreement on Trade in Services art 17; Agreement on Trade Related Aspects of Intellectual Property Rights art 3.

[20] GATT 1994 pt II art III(2). See Appellate Body Report, Japan – Alcoholic Beverages II (European Communities v Japan) WT/DS8/AB/R, (1 November 1996) for an explanation of the considerations given when considering whether products are ‘like’.

[21] GATT 1994 pt II art III(2). The test for whether products are ‘directly competitive and substitution’ is broader than that for ‘like products’. It was explained in Appellate Body Report, Korea Alcoholic Beverages (European Communities v Korea) WT/DS74/AB/R (17 February 1999).

[22] GATT 1994 pt II art III(2).

[23] John Mo, International Commercial Law (Lexis Nexis Butterworths, 4th ed, 2009) 720 [9.24].

[24] Panel Report, Canada – Import Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies (United States v Canada) DS17/R (18 February 1992) at 6.1.

[25] GATT 1994 pt I art I(1); General Agreement on Trade in Services art 1; Agreement on Trade Related Aspects of Intellectual Property Rights art 4.

[26] John Mo, International Commercial Law (Lexis Nexis Butterworths, 4th ed, 2009) 717 [9.21].

[27] Panel Report, Canada – Certain Measures Affecting the Affecting the Automotive Industry (European Communities v Canada) WT/DS139/4 (11 February 2000).

[28] GATT 1994 pt III, art XXVII(1) and art XXVIII(2).

[29] GATT 1994 Preamble.

[30] The WTO: Theory and Practice, WTO Doc ERSD-2009-11 (Economic Research and Statistics Decision 11 November 2009) 1.

[31] Ibid.

[32] See, eg, General Agreement on Tariffs and Trade 2014 art XVIII(1) which provides members are to consider the ‘normal position of their economy’ and then determine whether they are ‘developing’ country.

[33] Communique Formation of Asian Developing Members, WTO/GC/Com6 (27 March 2012) [1].

[34] United Nations Department of Economic and Social Affairs Development Policy and Analysis Division Committee for Development Policy, List of Least Developed Countries (16 February 2016) <> .

[35] Emma Ezeanin, The WTO and its Development Obligation: Prospects for Global Trade (Anthem Press, 2011) 58–9.

[36] Doha Work Programme, WTO Doc WT/MIN(05)/DEC (22 December 2005, adopted 18 December 2005) (Ministerial Declaration) para 44.

[37] World Trade Report 2014, 20 October 2014 (Note by the Secretariat) 192–3.

[38] Ankiko Yani, ‘Rethinking Special and Differential Treatment in the WTO’ (2013) Paper No. 435 Institute of Developing Economies 2.

[39] GATT 1994 art XVIII (1).

[40] GATT 1994 art XVIII:A (7).

[41] GATT 1994 art XVIII:C(13)

[42] GATT 1994 art XVIII:A(7b); Panel Report, India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products WT/DS90/R (6 April 1999) 209 reiterating that art XVIII:C necessitates compensation to be paid to effected industries.

[43] World Trade Organization Economic Research and Statistics Division, WTO Doc ERSD-2004-03 (1 May 2004) ‘Special and Differential Treatment in the WTO: Why, When and How’, 14.

[44] World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 8.

[45] UN Millennium Development Library, Trade in Development (Routledge, 2012) 218.

[46] GATT 1994 art XVIII:B(9). In short, balance of payments are the difference in combined value between income into a country and expenditure over a certain period.

[47] Ibid art XVIII:B (8)(9).

[48] Ibid art XIII(1).

[49] World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) page 7.

[50] World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 6.

[51] GATT 1994 pt IV art XXXVI(3).

[52] Ibid pt IV art XXXVI(2).

[53] Andrew Keck, World Trade Organization Economic Research and Statistics Division, WTO Doc ERSD-2004-03 (1 May 2004) ‘Special and Differential Treatment in the WTO: Why, When and How’ 4.

[54] GATT 1994 pt IV art XXXVII(3)(c).

[55] Rachel Kafta, ‘Anti-Dumping and Market Access: A Note’ (2006) 74 The South African Journal of Economics 524.

[56] World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 9.

[57] Ibid.

[58] World Trade Organisation Committee on Trade and Development, TWT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 9.

[59] Amelia U Santos-Paulino, United Nations Conference on Trade and Development Trade Discussion Paper Income Distribution and Poverty in Developing Countries: A Survey, UNCTAD, UNCTAD/OSG/DP/2012/1 (July 2012) [1], [4], [23].

[60] Andrew Christie, ‘Special and Differential Treatment in the GATT 1994: A Pyrrhic Victory for Developing Countries’ (2009) 10(2) The Esty Centre Journal of International Trade Law and Trade Policy 64, 67.

[61] Ibid 67.

[62] Panel Report, India-Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products WT/DS90/R (6 April 1999) 46–50.

[63] Ibid.

[64] As previously stated, the objective of art XVIII is to assist developing countries economic development to assist them in improving their standards of living: GATT 1994 art XVIII(1).

[65] See, eg, World Bank, India’s Poverty Profile (27 May 2016) <> .

[66] Specifically, pt V art XXXVI paragraphs 3, 4, and 5 as acknowledged by the WTO Secretariat: World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 10.

[67] Generalized System of Preferences; Decision 25 June 1971 (L/3545) (28 June 1971). Waivers are granted by the General Council according to procedures set out in art IX:3 of the Agreement Establishing the WTO and are legally binding instruments that allow temporary deviation from WTO obligations.

[68] Differential and More Favourable Treatment Reciprocity and Fuller Participation of Developing Countries, L/4903 (28 November 1979) (‘Enabling Clause’).

[69] Enabling Clause art (2)(a).

[70] Ibid art (2)(c).

[71] Ibid art 2(d).

[72] Preferential Tariff Treatment for Least-Developed Countries, WTO Doc WT/L/304 (17 June 1999, adopted 15 June 1999).

[73] Appellate Body Report, EC-Tariff Preferences II (European Communities v India) WTO Doc/WT/DS246/AB/R,AB-2003-27 (27 January 2003).

[74] Ibid para 2.

[75] Kevin Moss, ‘The Consequences of the WTO Appellate Body Decision in EC-Tariff Preference for the African Growth Opportunity Act and Sub-Saharan Africa’ (2006) 38 New York University International Journal of Law and Politics 667.

[76] Mathew Snyder, ‘GSP and Development: Increasing Effectiveness of Nonreciprocal Preferences’ (2012) 33(4) University of Michigan Law School 841.

[77] See, eg, Human Rights Watch, Rwanda events of 2016, Human Rights Watch World Report <>.

[78] Snyder, above n 76, 841.

[79] Omphemetse S Sibanda, ‘Towards a Revised GATT 1994/WTO Special and Differential Treatment Regime for Least Developed and Developing Countries’ (2010) 50 Foreign Trade Review 32, 37.

[80] Kreuger Bhagwati, ‘Reshaping the WTO’ (2005) 168 Far Eastern Review 1, 27.

[81] Ibid.

[82] Andrew Christie, above n 60, 70.

[83] Ibid 63.

[84] World Trade Report 2014, (20 October 2014) (Note by the Secretariat) 201.

[85] Preferential Rules of Origin for Least-Developed Countries, WT/MIN/43-WT/L/918 (11 December 2013) (Ministerial Declaration), para 11.

[86] Peter Sutherland et al, ‘The Future of the WTO Addressing Institutional Challenges in the New Millennium’ Report by the Consultative Board to the Director General Supachi Panitchpakdi, 25 [94].

[87] Ibid 95.

[88] Snyder, above n 76, 836.

[89] Ibid.

[90] Ibid 836–7.

[91] Ankiko Yani, ‘Rethinking Special and Differential Treatment in the WTO’ (2013) Paper No. 435 Institute of Developing Economies 6.

[92] See, eg, Paul Collier and Anothy Venables, ‘Rethinking Trade Preferences: How Africa Can Diversify its Exports’ (2007) 30 World Economy 1326, 1329; Snyder, above n 76, 822.

[93] World Trade Report 2014, (20 October 2014) (Note by the Secretariat) 200.

[94] Ibid.

[95] World Trade Organisation Committee on Trade and Development, WT/COMTD/W/196 (14 June 2013) (Note by the Secretariat) 85.

[96] World Trade Report 2014, (20 October 2014) (Note by the Secretariat) 200.

[97] Participation of Developing Countries in World Trade: Recent Development and the Trade of Least Developed Countries WT/COMTD/W/65 (15 February 2000) (Note by the Secretariat) 5.

[98] Doha Work Programme, WTO Doc WT/MIN(05)/DEC (22 December 2005, adopted 18 December 2005) (Ministerial Declaration) para 44.


[100] World Trade Organisation, Special and Differential Treatment: Grappling with 88 proposals (2016), World Trade Organisation <>.

[101] Yani, above n 91.

[102] Marrakesh Agreement Preamble.

[103] United Nations Charter art 2(1).

[104] Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the Charter of the United Nations, UNGAOR, 75th sess, Agenda Item 85, UN Doc A/RES/25/2625 (24 October 1970).

[105] Thomas D Heller and Abraham C Sofaer, ‘Sovereignty: The Practitioners Perspective’ in Stephen Kranser Problematic Sovereignty: Contested Rules and Political Possibilities (Columbia University Press, 2001) 24, 30.

[106] Hans Kelsen, Peace Through Law (The Law Book Exchange Ltd, New Jersey, 2000) 34.

[107] See, eg, M Sellers, Republican Principles in International Law: The Fundamental Requirements of a Just World Order (Springer, 2006) 12 quoting Emerich Vattell.

[108] Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933, (entered into force 26 December 1934) art 4.

[109] Alex Anson, ‘The Concept of Sovereign Equality of States in International Law’ (2016) 2(1) Gimpa Law Review 1, 3.

[110] Ibid 27.

[111] Phillippe Cullet, ‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’ (1999) 10 European Journal of International Law 550, 553.

[112] Ibid 550.

[113] Anson, above n 109, 31.

[114] Ibid.

[115] Marrakesh Agreement IX:1.

[116] Jeremy J Schoot, The WTO After Seattle (Peterson Institute, 2000) 285.

[117] Third World Network ‘No Legitimacy or Credibility in Seattle Process and Results’ (Media Release, 3 December 1999) <> .

[118] Anson, above n 109, 31.

[119] Enabling Clause preamble para 3-4.

[120] Max Planck, Encyclopaedia of Public International Law (April 2011) ‘States, Sovereign Equality’, [68]–[69].

[121] See, eg, Resolution adopted by the General Assembly, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among states in accordance with the Charter of the United Nations, A/RES/25/2625, 75th sess, Agenda Item 85 (24 October 1970).

[122] Brett Wilkins, ‘Nobel Prize winner Shiller: Inequality biggest problem facing the US’, Digital Journal (online), <> .

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