Qin: The Conundrum of WTO Accession Protocols: In Search of Legality and Legitimacy

Julia Ya Qin (Wayne State Univ. - Law) has posted The Conundrum of WTO Accession Protocols: In Search of Legality and Legitimacy (Virginia Journal of International Law, forthcoming). Here's the abstract:

The World Trade Organization, unlike other international organizations, may require its acceded members to accept more stringent rules of conduct than those binding upon its original members. The scope and content of such rules are country-specific, depending on the result of accession negotiations. The country-specific rules are set out in the protocol of accession concluded between the acceding country and the WTO. Cumulatively, accession rules have formed a significant part of WTO law, and some have given rise to major disputes, generating WTO case law on accession.

Despite the general acceptance of WTO accession practice, important questions concerning its legality and legitimacy remain unanswered. Substantively, the accession protocols modify the rules of conduct contained in the WTO multilateral trade agreements when applied to the acceded members. Yet, it is unclear on what legal basis the accession protocols have acquired this authority and what the proper relation should be between accession protocols and the WTO agreements. Normatively, the more stringent rules of conduct result in less favorable treatment of the acceded members, in derogation of the WTO principle of nondiscrimination. But it is unclear how such derogation may be justified. Confusions over the status of accession protocols and the absence of clear rationale for the country-specific rules have led to problematic jurisprudence, creating uncertainty in the rights and obligations of acceded members vis-à-vis other members of the WTO.

This article seeks to resolve this conundrum of WTO accession protocols, building on insights from existing scholarship. On the question of legality, the author takes a comparative and historical approach, and proposes that WTO accession protocols can be most aptly characterized as subsequent practice of an international organization modifying its underlying treaties. On the question of legitimacy, the article identifies the lack of reason and transparency in the accession rules as the main problem, and critiques the “entry fee” theory offered by a WTO panel as the justification for all accession rules. The article then makes suggestions on what should and can be done to mitigate the problems caused by WTO accession protocols.