The wto-minus Strategy: Development and human rights under wto law

(last accessed 1 November 2007). For an evaluation of the Washington Consensus and rejoinder to critics, see J. Williamson, The Washington Consensus as Policy Prescription for Development (‘Practitioners of Development’ World Bank Lecture Series, 2004) (last accessed 1 November 2007). David Greenaway and Oliver Morrissey state that almost 80 percent of World Bank structural adjustment loans to developing countries during the 1980s had trade policy reforms attached: D Greenaway and O Morrissey, Structural Adjustment and Liberalisation in Developing Countries: What have we learned?, Kyklos Vol 46 Issue 2 1993 241-261, at 243.

60 A. Orford, Globalization and the Right to Development, in: P. Alston (ed), People’s Rights 131 (Oxford: University Press, 2001).

61 UNGA, Declaration on the Right to Development (A/RES/41/128) (1986). Because the Development Declaration is a resolution of the UN General Assembly, not an international treaty, it is not a binding instrument under international law. The precise meaning and content of the right to development are as yet unclear, as is the nature of the obligations it would impose upon states or the international community if it were to become a binding international treaty: Orford, id.

62 Ibid, Preamble.

63 UN Committee on Economic, Social and Cultural Rights, supra note 49, para. 9.

64 R. B. Potter, T. Binns, J. A. Elliott and D. Smith, Geographies of Development 89 (Essex: Pearson/Prentice Hall, 2004).

65 Ibid, p. 114. The influence of this approach remains strong today, buoyed particularly by the sustainable development movement.

66 Hettne, supra note 3, p. 161.

67 D. Kingsbury, Community Development, in: Kingsbury et al., supra note 2, p. 222.

68 Nor was the outcome of the Uruguay Round influenced, apparently, by the adoption of the Vienna Declaration and Programme of Action by 171 states represented at the 1993 World Conference on Human Rights. The Vienna Declaration stated that the promotion and protection of human rights is the “first responsibility of governments,” reaffirmed the right to development and made clear that “all human rights are universal, indivisible and interdependent and interrelated:” Vienna Declaration and Programme of Action (A/CONF.157/24) (1993). Part I Paragraphs 1, 10 and 5.

69 Hettne, supra note 4, p. 8.

The name ‘WTO-Minus’ is an extension of the line of analysis of international trade law which uses the term ‘Plus’ to indicate a position relative to WTO law. For example, the term “TRIPs-Plus” has been applied to bilateral and regional trade agreements under which countries agree to assume not only the standard obligations under TRIPs but also more extensive obligations than are required under TRIPs: WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1995) (TRIPs). For example, developing countries have forgone their rights to a transition period for implementing TRIPs and to make use of particular flexibilities otherwise available to them under TRIPs.

It is supported in this by a great many bilateral and a number of regional trade agreements which largely mirror its rules but which also give the signatory countries deeper access to each others’ markets.

70 General Agreement on Trade in Services (GATS), opened for signature 15 April 1994, 1869 UNTS 183 (entered into force 1 January 1995).

71 TRIPs, supra note 77.

72 An exception is the two plurilateral WTO agreements, the Agreement on Trade in Civil Aircraft, opened for signature 15 April 1994, 1915 UNTS 103 (entered into force 1 January 1996) and the Agreement on Government Procurement, Agreement on Government Procurement, opened for signature 15 April 1994, 1915 UNTS 103 (entered into force 1 January 1996).

73 The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), opened for signature 15 April 1994, 1869 UNTS 401 (entered into force 1 January 1995) arts. 19, 21-2, 26.

74 Although GATT 1947 continues in force and is still the principal agreement governing international trade in goods, in the event of inconsistency between GATT 1947 and any of the new agreements, the provisions of the latter will prevail to the extent of the inconsistency: WTO Agreement, supra note 1, Annex 1A.

75 Low national income is indicated by per capita Gross National Income under $900, weak human assets by a composite index based on health, nutrition and education indicators and high economic vulnerability by a composite index based on indicators of instability of agricultural production and exports, inadequate diversification and economic smallness. United Nations Conference on Trade and Development, Least Developed Countries at a Glance (TAD/INF/PR/LDC02) (18/06/02)

http://www.unctad.org/Templates/webflyer.asp?docid=2929&intItemID=1634&lang=1 (last accessed on 1 November 2007).

76 Some WTO agreements do impose obligations on LDCs but give them longer implementation periods, which have usually been further extended. For example, under the TRIPs Agreement, LDCs were to have implemented their obligations by 2005. The period has since been extended to 2016: World Trade Organisation, Understanding the WTO 42 (2007) http://www.wto.org/English/thewto_e/whatis_e/tif_e/understanding_e.pdf (last accessed on 1 November 2007). LDCs also enjoy the benefits of extra technical assistance (for example, under the Agreement on Technical Barriers to Trade, opened for signature 15 April 1994, 1868 UNTS 120 (entered into force 1 January 1995) (TBTA)) and of being specially considered in the contexts of technology transfer (for example, GATS, supra note 79) and dispute settlement (DSU, supra note 82). For more information, see: WTO Committee on Trade and Development, Special and Differential Treatment for Least-Developed Countries (WT/COMTD/W/135) (5 October 2004).

Agreement on Agriculture, opened for signature 15 April 1994, 1867 UNTS 410, (entered into force 1 January 1995), arts. 4 and 15.2 (‘AoA’).

For example, certain subsidies used by some ordinary developing countries to support small and resource-poor farmers were excluded from the general commitment to reduce agricultural subsidies: ibid, art. 6.2. Other examples include arts. 12.4 of the TBTA, supra note 85, and art. 4 of the Agreement on Trade-Related Investment Measures, opened for signature 15 April 1994, 1869 UNTS 299 (entered into force 1 January 1995) (TRIMS).

77 Examples may be found most WTO agreements. Typical illustrations are Article 10 of the Agreement on Sanitary and Phytosanitary Measures, opened for signature 15 April 1994, 1867 UNTS 493 (entered into force 1 January 1995) (SPSA) and Article 11 of the TBTA, supra note 85.

78 WTO Committee on Trade and Development, Implementation of Special and Differential Treatment

Provisions in WTO Agreements and Decisions, 4 (WT/COMTD/W/77) (25 October 2000). The Aid for Trade initiative launched at the Hong Kong WTO Ministerial meeting in 2005 also falls within this category. It is a voluntary initiative designed to help developing countries, in particular LDCs, to build their trading capacity and infrastructure to benefit more from trade liberalisation. It is part of the Official Development Assistance (ODA) of participating donor countries. “OECD data show trade-related ODA commitments running at about $25-30 billion a year in the past few years, which is around 30% of total ODA:” WTO, Aid for Trade Fact Sheet, 1 http://www.wto.org/english/tratop_e/devel_e/a4t_e/a4t_factsheet_e.htm (last accessed 1 November 2007). The WTO also includes as Special and Differential Treatment provisions for technical assistance and training, much of which is provided through the WTO Institute for Training and Technical Cooperation and the International Trade Centre. For more information about these programmes, see http://www.wto.org/english/tratop_e/devel_e/teccop_e/tct_e.htm (last accessed 1 November 2007).

79 A. Singh, Elements for a New Paradigm on Special and Differential Treatment: Special and Differential Treatment, the Multilateral Trading System and Economic Development in the 21^st Century, paper prepared for joint ICTSD-GP International Dialogue, April 2003. http://www.ictsd.org/dlogue/2003-05-06/Singh_S&DT_final.pdf (last accessed 1 November 2007).

80 F. van Hees, Protection v. Protectionism: The Use of Human Rights Arguments in the Debate for and against the Liberalisation of Trade 18 (Abo Akademi, Finland,, 2004) http://www.abo.fi/instut/imr/norfa/floris.pdf (last accessed 1 November 2007), quoting J. Bhagwati, In Defense of Globalization (New York: Oxford University Press, 2004).

81 AoA, supra note 86. Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, opened for signature 15 April 1994, 1868 UNTS 279 (entered into force 1 January 1995) (the Customs Valuation agreement). TBTA, supra note 85.

82 WTO Agreement, supra note 1, General Interpretative Note to Annex 1A, Annex 1A Multilateral Agreements on Trade in Goods.

GATT 1947, supra note 21, art. I; GATS, supra note 79, art. II; TRIPs, supra note 77, art. 4.

83 GATT 1947, supra note 21, art. III; GATS, supra note 79, art. XVII; TRIPs, supra note 77, art. 3.

84 WTO, supra note 89, p. 4.

85 GATT 1947, supra note 21, art. II.

86 WTO, supra note 89, p. 2.

87 To a certain extent, the rights and obligations of ordinary developing country Members of the WTO operate in a dynamic context, due to the system of rounds of negotiations towards the progressive liberalisation of international trade.

88 There is ample commentary on the criticisms of the WTO which led to the establishment of the Doha Round as a development round. For a civil society perspective, see J. Thomas, The Battle in Seattle: The Story Behind and Beyond the WTO Demonstrations (Colorado: Fulcrum Publishing, 2000).

89 Doha WTO Ministerial Declaration WT/MIN(01)/DEC/1 20 November 2001

http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_e.htm (last accessed on 2 November 2007). However, the Doha Round has stalled and seems unlikely to yield any new law or liberalisation commitments.

90 Osmani,, supra note 52, pp. 261 and 264.

91 GATT 1947, supra note 21, art. XI.

92 AoA, supra note 86, art. 4.

93 However, technical and health standards are increasingly being applied by industrialised countries with similar effect.

94 AoA, supra note 86, art. 4.2, annex 5.

95 Members agreed during the Uruguay Round that ordinary developing country agricultural tariffs would be reduced overall by 24% by 2005.

96 WTO, supra note 85, p. 27.

97 Id.

98 Ibid, p. 25.

99 Even before 1995, the majority of developing countries had been required to reduce their agricultural tariffs, not because of GATT 1947 but in compliance with conditions imposed by the international development banks, as the result of regional or bilateral trade agreements or simply as autonomous liberalisation, usually in response to elite domestic pressure. Commonly, trade liberalisation undertaken for these reasons has extended further than the requirements of WTO law: B. Mercurio, Re-shaping the Role of Developing Countries in the WTO: Analysing the Agreement on Agriculture, Vol. 9 Balayi 31-2 (2006).

100 See K. Shadlen, Exchanging development for market access? Deep integration and industrial policy under multilateral and regional-bilateral trade agreements, 12.5 Review of International Political Economy (2005). For example, many bilateral and regional trade agreements require developing countries to introduce more extensive liberalisation in investment and higher levels of intellectual property protection. Some also require that developing countries liberalise trade in services in ways not required under GATS. Examples include Mexico under NAFTA, Singapore under ASEAN and Brazil under MERCOSUR: S Stephenson, Can Regional Liberalization of Services go further than Multilateral Liberalization under the GATS? Vol. 1 No. 2 World Trade Review (2002).

101 FAO, Agriculture, Trade and Food Security: Issues and Options in the WTO Negotiations from the Perspective of Developing Countries, Vol. II, Country Case Studies, FAO Commodities and Trade Division, Rome, 2000. Part IV Issues of Concern in Further Negotiations on Agriculture.

102 Id.

103 This figure is based on prior agreement that agricultural tariffs will be reduced by an average of at least 50 percent for industrialised countries: Ambassador Crawford Falconer, Revised Draft Modalities for Agriculture, Part II Market Access, 1 August 2007, and by two-thirds of that for ordinary developing countries: M. Gifford, Domestic Agricultural Policy Reform, 11(2) Bridges Weekly Trade News Digest 4 (2007).

104 WTO General Council, Decision Adopted by the General Council on 1 August 2004 (WT/L/579), Annex A, para. 41.

105 WTO Committee on Agriculture, Chairman’s Reference Paper: Special Products, 4 May 2006, paras 9 and 10.

106 World Trade Organization, The Future of the WTO 24 (Consultative Board, 2004)