Developing country coalitions at the WTO: In search of legal support

Harvard International Law Journal

Volumn 48, Issue 2, 2007, Pages 483-551

  Rolland, Sonia E ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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[No Author keywords available]

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EID: 34548634186     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (280)

1. AMRITA NARLIKAR, INTERNATIONAL TRADE AND DEVELOPING COUNTRIES: BARGAINING COALITIONS IN THE GATT AND WTO (2003).
2. Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 1867 U.N.T.S. 154, 33 I.L.M. 1144 (1994) [hereinafter WTO Agreement].
3. General Agreement on Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT].
4. Factors such as power play between actors or policy convergence between members are two traditional matrices of analysis in international relations theory. See, e.g., Ruth L. Okediji, Public Welfare and the Role of the WTO: Reconsidering the TRIPS Agreement, 17 EMORY INT'L L. REV. 819, 840 (2003).
5. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988).
6. See JOHN H. JACKSON, THE WORLD TRADING SYSTEM 109-11 (2d ed. 1997);
7. see also Peter M. Gerhart & Archana Seema Kella, Power and Preferences: Developing Countries and the Role of the WTO Appellate Body, 30 N.C. J. INT'L L. & COM. REG. 515 (2005).
8. Robert O. Keohane & Joseph S. Nye, Jr., Transgovernmental Relations and International Organizations, 27 WORLD POL. 39, 52 (1974).
9. Some scholars currently are conducting empirical studies and data collection in this area but these studies have yet to be published.
10. Colleen Hamilton & John Whalley, Coalitions in the Uruguay Round, 125 WELTWIRTSCHAFTLICHES ARCHIVE 547, 547 (1989).
11. William B.T. Mock, Game Theory, Signaling, and International Legal Relations, 26 GEO. WASH. J. INT'L L. & ECON. 34, 44 (1992).
12. NARLIKAR, supra note 1, at 29-33.
13. Id. at 31.
14. Id.
15. Id. at 31-32.
16. A forum created by developing countries seeking an alternative outlet to the GATT for multilateral trade negotiations, the UNCTAD put some pressure on the GATT to better address developing country needs but the resulting legal instruments (Part IV of the GATT on trade and development, adopted in 1964) remain problematic to this day due to their generally non-binding character. Ultimately developing countries retreated on mainly defensive positions in the subsequent decades by seeking exemptions from the general trade regime and limitations to their commitments.
17. BRANISLAV GOSOVIC, UNCTAD: CONFLICT AND COMPROMISE: THE THIRD WORLD'S QUEST FOR AN EQUITABLE WORLD ECONOMIC ORDER THROUGH THE UNITED NATIONS 15-20 (1972).
18. C. FRED BERGSTEN, WEAK DOLLAR, STRONG EURO?: THE INTERNATIONAL IMPACT OF EMU 40 (1998);
19. JOSEPH E. STIGLITZ & ANDREW CHARLTON, FAIR TRADE FOR ALL -HOW TRADE CAN PROMOTE DEVELOPMENT 43 (2005).
20. Report of the United Nations Conference on Trade and Development on its Fifth Session, G.A. Res. 34/196, U.N. Doc. A/RES/34/196 (Dec. 19, 1979).
21. Peter Draper & Razeen Sally, Developing Country Coalitions in Multilateral Trade Negotiations 35 (2004) (Jawaharlal Nehru University, Paper) (on file with the Internarional Trade Policy Unit, London School of Economics) available at www.lse.ac.uk/collections/ InternationalTradePolicyUnit/Events/May2005/draper-sallyjnu1.doc.
22. NARLIKAR, supra note 1, at 44-45.
23. Id. at 55-58. The concepts of Part IV and later of preferential systems eventually integrated in the GATT legal system through the Enabling Clause were initially developed at UNCTAD under the aegis of the G-77.
24. Gerald M. Meier, The Tokyo Round of Multilateral Trade Negotiations and the Developing Countries, 13 CORNELL INT'L. L.J. 239, 245-46 (1980).
25. NARLIKAR, supra note 1, at 173.
26. Hong Kong, Taiwan, South Korea, Singapore, and later Thailand, Malaysia, and the Philippines are placed within this group.
27. NARLIKAR, supra note 1, at 86-87.
28. Members of the G-10 include the core group from the IGDC (Argentina, Brazil, Egypt, India, and Yugoslavia), Chile, Jamaica, Pakistan, Peru, and Uruguay. Id. at 63, 71.
29. Draper & Sally, supra note 19, at 5.
30. G-20 members include Bangladesh, Chile, Colombia, Hong Kong, Indonesia, Ivory Coast, Jamaica, Malaysia, Mexico, Pakistan, Philippines, Romania, Singapore, Sri Lanka, South Korea, Thailand, Turkey, Uruguay, Zambia, and Zaire. NARLIKAR, supra note 1, at 94. This is a different group from the current G-20 formed in 2003. See infra. Part I.A.2.
31. G-9 members include Australia, Austria, Canada, Finland, Iceland, New Zealand, Norway, Sweden, and Switzerland. NARLIKAR, supra note 1, at 94.
32. The Food Importers' Group includes Egypt, Jamaica, Mexico, Morocco, Peru, India, Nigeria, and South Korea. Id. at 37.
33. The Cairns Group was formed in 1986 and continues to date. Its membership includes Argentina, Australia, Brazil, Canada, Chile, Colombia, Fiji, Hungary, Indonesia, Malaysia, New Zealand, the Philippines, Thailand, and Uruguay. See generally R. A. Higgott & A. F. Cooper, Middle Power Leadership and Coalition Building: Australia, the Cairns Group and the Uruguayan Round of Trade Negotiations, 44 INT'L ORG. 589 (1990).
34. Draper & Sally, supra note 19, at 6; Pedro da Motta Veiga, Brazil and the G20 Group of Developing Countries, in MANAGING THE CHALLENGES OF WTO PARTICIPATION: 45 CASE STUDIES 109 (Peter Gallagher, Patrick Low & Andrew L. Stoler, eds.) (2005).
35. Draper & Sally, supra note 19, at 6-7.
36. The Trade Negotiations Committee compiled a list of coalitions current as of the end of 2006, which lists sixty-two groupings dealing with virtually every issue and sub-sector of the Doha negotiations as well as cross-cutting issues. Trade Negotiations Committee, Formal and Informal Groupings or Coalitions in the DDA Negotiations (Dec. 8, 2006) (unpublished document, on file with author). This Article discusses only some of these groupings.
37. Membership includes Cuba, Egypt, India, Indonesia, Pakistan, Tanzania, and Uganda. NARLIKAR, supra note 1, at 180.
38. Membership currently includes Antigua and Barbuda, Barbados, Belize, Bolivia, Cuba, Dominica, the Dominican Republic, El Salvador, Fuji, Grenada, Guatemala, Jamaica, Mauritius, Mongolia, Nicaragua, Paraguay, Papua New Guinea, Solomon Islands, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, and Trinidad and Tobago. World Trade Organization, Countries, Alliances, and Proposals, http://www.wto.org/English/tratop_e/agric_e/ negs_bkgrnd04_groups_e.htm (last visited Mar. 24, 2007).
39. The Friends of Services remains active and a new G-24 on Services was formed in 1999, including Argentina, Bolivia, Brazil, Colombia, Cuba, Dominican Republic, Ecuador, El Salvador, Honduras, India, Indonesia, Malaysia, Mexico, Nicaragua, Pakistan, Panama, Paraguay, Peru, Philippines, Sri Lanka, Thailand, Uruguay, and Venezuela. NARLIKAR, supra note 1, at 48.
40. Membership comprises Cuba, Dominican Republic, Honduras, El Salvador, Haiti, Honduras, Kenya, Nicaragua, Nigeria, Pakistan, Peru, Sri Lanka, Uganda, and Zimbabwe. Press Release, Friends of the Development Box (Nov. 10, 2001), http://www.focusweb.org/publications/2001/Friends-of-the-development-box-press- statement.html.
41. Membership currently comprises Australia, Argentina, Chile, Iceland, Ecuador, New Zealand, Norway, Peru, Philippines, and the United States. Trade Negotiations Committee, supra note 34. This coalition is a rare example of a new alliance that includes both developed and developing countries.
42. Membership comprises the Dominican Republic, Egypt, Honduras, India, Jamaica, Kenya, Pakistan, Sri Lanka, and Thailand. NARLIKAR, supra note 1, at 187-88.
43. World Trade Organization, supra note 36.
44. Ruth Gordon, Sub-Saharan Africa and the Brave New World of the WTO Multilateral Trade Regime, 8 BERKELEY J. AFR.-AM. L. & POL'Y 79, 113 (2006).
45. Bernard Hoekman, Cancun: Crisis or Catharsis? 2 (Sept. 20, 2003) (unpublished note, on file with the Brookings-George Washington Trade Roundtable), available at http://www.sed.manchester.ac.uk/idpm/research/ events/wbseminar/CancunCatharsisorCrisis.pdf.
46. World Trade Organization, Ministerial Declaration of 18 December 2005, ¶ 11, WT/MIN(05)/DEC (2005) [hereinafter Hong Kong Declaration]. However the agreement in principle embodied in the Declaration is now effectively suspended after the collapse of the Doha Round talks in July 2006. See also Gordon, supra note 42, at 115. Because the negotiations were subsequently suspended, the implementation of the Declaration remains doubtful at the time of this writing.
47. Arvind Panagariya, Liberalizing Agriculture, 84 FOREIGN AFF. (WTO SPECIAL EDITION) (2005), available at http://www.foreignaffairs.org/20051201faessay84706/arvind-panagariya/ liberalizing-agriculture.html.
48. The group's objectives and status had emerged a few months earlier with the Brazilian Declaration issued by Brazil, India, and South Africa. See Joint Proposal by Argentina et al., Brazil - Agriculture Framework Proposal, WT/MIN(03)/W/6 (Sept. 4, 2003). The G-20 currently comprises twenty-one members: Argentina, Bolivia, Brazil, Chile, China, Cuba, Egypt, Guatemala, India, Indonesia, Mexico, Nigeria, Pakistan, Paraguay, Philippines, South Africa, Tanzania, Thailand, Uruguay, Venezuela, and Zimbabwe. G-20, Members, http://www.g-20.mre.gov.br/members.asp (last visited Mar. 24, 2007).
49. G-20 members represent almost sixty percent of the world population, seventy percent of the world's rural population, and twenty-six percent of the world's agricultural exports. See G-20, History, http://www.g-20.mre.gov. br/history.asp (last visited Aug. 14, 2006).
50. Da Motta Veiga, supra note 32, at 110.
51. Draper & Sally, supra note 19, at 44.
52. Hoekman, supra note 43, at 2.
53. Members currently include Angola, Bangladesh, Benin, Burkina Faso, Burundi, Cambodia, Central African Republic, Chad, Democratic Republic of Congo, Djibouti, Gambia, Guinea, Guinea Bissau, Haiti, Lesotho, Madagascar, Malawi, Maldives, Mali, Mauritania, Mozambique, Myanmar, Niger, Rwanda, Senegal, Sierra Leone, Solomon Islands, Tanzania, Togo, Uganda, Zambia, and some observers to the WTO. NARLIKAR, supra note 1, at 46.
54. Together with the ACP Group, the LDC Group and the African Group form the G-90, an umbrella coalition that emerged during the Cancun Ministerial Meeting and opposed negotiations on the Singapore issues. World Trade Organization, supra note 36.
55. See, e.g., Statement by Zimbabwe to the WTO TRIPs Council (Apr. 5, 2001), reprinted in Ellen't Hoen, TRIPs, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha, 3 CHI. J. INT'L L. 27, 38 n.38 (2002) (forming the template for the Doha Declaration on Public Health of 2001);
56. Council for Trade-Related Aspects of Intellectual Property Rights, Brazil-Submission on TRIPS and Public Health, IP/C/W/296 (June 29, 2001).
57. General Council, Implementation of Paragraph 6 of the Doha Declaration on the TRIPS Agreement and Public Health, WT/L/540 (Sept. 2, 2003) [hereinafter 2003 Decision on Public Health].
58. Initially the coalition comprised Bangladesh, Cuba, Egypt, Ghana, India, Indonesia, Kenya, Malaysia, Mauritius, Tanzania, Thailand, Venezuela, and Zimbabwe, with the additional support of Pakistan and Sri Lanka. Developing Nations Oppose Multilateral Investment Norms, TIMES OF INDIA, Oct. 1, 1996, at 19.
59. Eric M. Burt, Developing Countries and the Framework for Negotiations on Foreign Direct Investment in the World Trade Organization, 12 AM. U. J. INT'L L. & POL'Y 1015, 1050-53 (1997).
60. Andrew Hurrell & Amrita Narlikar, A New Politics of Confrontation? Brazil and India in Multilateral Trade Negotiations, 20 GLOBAL SOC'Y 415 (2006) (providing an interesting account of coalitions dynamics at the Cancun ministerial meeting).
61. Beyond the WTO, the aborted negotiations on a Multilateral Agreement on Investment shed light on some of these tensions. While most developing countries wish to attract foreign investment (and hence are willing to compete for it), the issue, rather, is to determine the appropriate forum for negotiating investment rules. See, e.g., Burt, supra note 56, at 1023-26; see also Robert Howse, From Politics to Technocracy - and Back Again: The Fate of the Multilateral Trading Regime, 96 AM. J. INT'L L. 94, 103 (2002) (tracing the shift in policy on investment by some countries to the debt crises).
62. See, e.g., NAMA-11 comprising Argentina, Bolivarian Republic of Venezuela, Brazil, Egypt, India, Indonesia, Namibia, Philippines, South Africa, and Tunisia. A recent summary of positions shows the lack of convergence between developing countries on NAMA. Negotiating Group of Market Access, Toward NAMA Modalities, JOB(06)/200/Rev.1 (June 26, 2006).
63. Membership comprises Dominican Republic, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. Council for Trade in Services, Dominican Republic - Conclusions and Recommendations of the Expert Meeting on Tourism organized by UNCTAD, S/C/W/149 (May 23, 2000).
64. The Mercado Comun del Sur (MERCOSUR) is a regional trade agreement signed in 1991 between Argentina, Brazil, Paraguay, and Uruguay. Treaty Establishing a Common Market between the Argentine Republic, the Federal Republic of Brazil, the Republic of Paraguay, and the Eastern Republic of Uruguay, Mar. 26, 1991, 2150 U.N.T.S. 142.
65. The CARICOM is a regional trade agreement signed in 1991. It includes Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Guyana, Jamaica, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Trinidad and Tobago, and Suriname. World Trade Organization, supra note 36.
66. See Papua New Guinea - Statement by Minister for Foreign Affairs and Trade, WT/MIN(96)/ST/112/Rev.1 (1996).
67. Membership comprises Angola, Benin, Botswana, Burkina Faso, Burundi, Cameroon, Central African Republic, Chad, Congo, Cote d'Ivoire, Democratic Republic of Congo, Djibouti, Egypt, Gabon, Gambia, Ghana, Guinea, Guinea Bissau, Kenya, Lesotho, Madagascar, Malawi, Mali, Mauritania, Mauritius, Morocco, Mozambique, Namibia, Niger, Nigeria, Rwanda, Senegal, Sierra Leone, South Africa, Swaziland, Tanzania, Togo, Tunisia, Uganda, Zambia, Zimbabwe, and seven observers to the WTO, corresponding to the membership of the Organization of African Unity (organization continued as the African Union after 2002). NARLIKAR, supra note 1, at 49.
68. Id.
69. Surya P. Subedi, The Road from Doha: The Issues for the Development Round of the WTO and the Future of International Trade, 52 INT'L & COMP. L.Q. 425, 430 (2003).
70. Draper & Sally, supra note 19, at 31.
71. Subedi, supra note 66, at 444.
72. On the importance for developing countries of generating their own research on long-term implications of trade negotiations, see Arvind Panagaria, The Millenium Round and Developing Countries: Negoriating Straregies and Areas of Benefit (UNCTAD and Centet for Intetnational Development, G-24 Discussion Papers Series, No. 1, March 2000), at 13-15, available at http://www.columbia.edu/~ap2231/Policy%20Papers/g-24-two.pdf.
73. NARLIKAR, supra note 1, at 203.
74. Id. at 176 and ch. 5.
75. Da Motta Veiga, supra note 32, at 109.
76. NARLIKAR, supra note 1, at 201.
77. Christian Bjornskov & Kim Martin Lind, Where Do Developing Countries Go After Doha? An Analysis of WTO Positions and Potential Alliances, 36 J. WORLD TRADE 543, 561 (2002).
78. Id.
79. NARLIKAR, supra note 1, at 165, 174.
80. Draper & Sally, supra note 19, at 12.
81. NARLIKAR, supra note 1, at 169
82. Id. at 175.
83. Draper & Sally, supra note 19, at 16.
84. John Braithwaite, Methods of Power for Development: Weapons of the Weak, Weapons of the Strong, 26 MICH. J. INT'L L. 297, 312 (2004);
85. Peter Drahos, Developing Countries and International Intellectual Property Standards-Setting, 5 J. WORLD INTELL. PROP. 765, 784 (2002) (suggesting that India, Brazil, Nigeria, and China could form a "Developing Country Quad" which could form and lead working groups on key negotiation issues and to which other developing countries could rally in the final stages of a round).
86. Draper & Sally, supra note 19, at 9.
87. Id. at 45-46.
88. Id. at 10-15.
89. Frederick M. Abbott, The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health, 99 AM. J. INT'L L. 317, 344-45 (2005);
90. but see Richard H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AM. J. INT'L L. 247, 275 (2004) (arguing that transatlantic interests remain generally aligned and that developing country coalitions have generally been unsuccessful even in the face of disputes between the United States and Europe). Steinberg nonetheless acknowledges elsewhere that "coordinated transatlantic action offers a greater probability of successfully resolving trade problems with third countries than is offered by the independent action of either power. Transatlantic cooperation in closing the Uruguay Round attests to that" and even recognizes that "[w]hen transatlantic efforts have been made to solve third-country problems or system-wide problems, cooperation has frequently broken down . . . [T]he differences have often been exploited by third countries to drive a wedge into the transatlantic partnership."
91. Richard H. Steinberg, Great Power Management of the World Trading System: A Transatlantic Strategy for Liberal Multilateralism, 29 L. & POL'Y INT'L BUS. 205, 218-19, 227-28 (1998).
92. Special Session of the Committee on Trade and Development, Report to the General Council, TN/CTD/7 (Apr. 7, 2003).
93. Bjornskov & Lind, supra note 74, at 549-50.
94. Id.
95. Id. at 552-53.
96. Hoekman, supra note 43, at 5. However the author also notes that coalitions may lead to the entrenchment of positions and thus, a higher risk of breakdown in negotiations if groups are less flexible about their positions than individual members would be. Id.
97. Draper and Sally note that the proliferation of smaller developing country coalitions focused on specific issues has made negotiations more complex. Draper & Sally, supra note 19, at 11-12.
98. Steve Charnovitz, Linking Topics in Treaties, 19 U. PA. J. INT'L ECON. L. 329, 339 (1998).
99. Kenneth W. Abbott & Duncan Snidal, Values and Interests: International Legalization in the Fight Against Corruption, 31 J. LEGAL STUD. 141, 141 (2002).
100. EC members have participated in the GATT both as legally separate parties and as a group entity with a single spokesperson and united agenda since the 1960s and the European Commission participates in WTO bodies as a sui generis entity (though Article IX of the WTO Agreement specifies that the number of votes allocated to it cannot exceed the number of EC states that are members to the WTO). WTO Agreement art. IX.
101. See infra, Part II.B.2.
102. Keohane & Nye, supra note 7, at 50-55. See generally Anne-Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracy, 24 MICH. J. INT'L L. 1041, 1045 (2003) (on governmental and intra-governmental transnational networks).
103. Committee on Trade and Development, Technical Assistance and Training Plan 2007, ¶ 11, WT/COMTD/W/151 (Oct. 17, 2006) [hereinafter Technical Assistance Plan 2007];
104. Committee on Trade and Development, Technical Assistance and Training Plan 2006, ¶ 8, WT/COMTD/W/142 (Sept. 16, 2005) [hereinafter Technical Assistance Plan 2006]. Both plans are very similar.
105. Technical Assistance Plan 2007, supra note 97, ¶ 11; Technical Assistance Plan 2006, supra note 97, ¶ 10.
106. Technical Assistance Plan 2007, supra note 97, ¶ 93; Technical Assistance Plan 2006, supra note 97, ¶ 63.
107. Technical Assistance Plan 2007, supra note 97, ¶ 104-07; Technical Assistance Plan 2006, supra note 97, ¶ 77.
108. Technical Assistance Plan 2007, supra note 97, ¶ 118; Technical Assistance Plan 2006, supra note 97, ¶ 87.
109. Technical Assistance Plan 2007, supra note 97, ¶ 139; Technical Assistance Plan 2006, supra note 97, ¶ 103.
110. Technical Assistance Plan 2007, supra note 97, ¶ 138; Technical Assistance Plan 2006, supra note 97, ¶ 102.
111. Benin, Botswana, Burkina-Faso, Cameroon, Cote d'Ivoire, Ghana, Kenya, Malawi, Mali, Mauritania, Mozambique, Tanzania, Tunisia, Uganda, Senegal, and Zambia. Joint Integrated Technical Assistance Programme, Partner Countties, http://www.jitap.org/country.htm (last visited Mar. 24, 2007).
112. Technical Assistance Plan 2007, supra note 97, ¶ 153; Technical Assistance Plan 2006, supra note 97, ¶ 120.
113. Trade Policy Reviews, another activity undertaken by the Secretariat, may also be conducted on a group of countries, rather than as individual reviews. Countries may ask to be reviewed as a group rather than individually. For instance, East African Community members (Kenya, Tanzania and Uganda) requested a joint review (completed in 2006) WTO Secretariat, Trade Policy Review: East African Community, WT/TPR/S/171 (Sept. 20, 2006), as did the Southern African Customs Union (Botswana, Lesotho, Namibia, South Africa and Swaziland) in 2003, WTO Secretariat, Trade Policy Review: Southern Africa Customs Union, WT/TPR/S/114, (Mar. 24, 2003).
114. See infra Part II.B.1.
115. See infra Part II.B.2.
116. GATT Trade Negotiations Committee of Developing Countries, Proceedings of the Tenth Meeting, ¶ 17, TN(LDC)36 (Feb. 12, 1971).
117. GATT Secretariat, Minutes of the Meeting of the Informal Group of Developing Countries Held on 16 December 1979, ¶ 6, LDC/M/101 (Dec. 29, 1971).
118. Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries, ¶ 2(d), (L/4903) (Dec. 4, 1979) [hereinafter Enabling Clause].
119. Hong Kong Declaration, supra note 44, ¶ 8; see also id. ¶ 47 ("Building upon the commitment in the Doha Ministerial Declaration, developed-country Members, and developing-country Members declaring themselves in a position to do so, agree to implement duty-free and quota-free market access for products originating from LDCs as provided for in Annex F to this document."). Annex F specifies that duty-free, quota-free access will cover "at least 97 per cent of products originating from LDCs, defined at the tariff line level, by 2008 or no later than the start of the implementation period" but this leaves a number of crucial issues unresolved. Special and Differential Treatment, Dec. 18, 2005, Ministerial Declaration of 18 December 2005, Annex F, WT/MIN(05)/DEC (2005). In particular, there is no actual timetable for implementation and the tariff line level is ambiguous, which can lead to very different results depending on how many tariff line digits (four, six, or eight) are taken into account. Basing the percentage of products on tariff lines means that an importing country could exclude a single tariff line that constitutes the bulk of imports from a particular LDC and still meet the 97 percent obligation.
120. See United Nations, List of LDCs, http://www.un.org/special-rep/ ohrlls/ldc/list.htm (last visited Mar. 24, 2007).
121. In the Doha Round, a number of proposals have been tabled by developing countries, and particularly LDCs. These proposals were initially tabled and discussed in a Special Session of the Committee on Trade and Development. See, e.g., Proposal by the African Group, African Group - Special and Differential Treatment Provisions, TN/CTD/W/3/Rev.2 (July 17, 2002); Joint Least-Developed Countries Proposals, Uganda - Special and Differential Treatment Provisions, TN/CTD/W/4/Add.1 (July 1, 2002); Proposal by Saint Lucia, Saint Lucia - Special and Differential Treatment Provisions, TN/CTD/W/8 (June 24, 2002); Proposal by India, India - Special and Differential Treatment Provisions, TN/CTD/W/6 (June 17, 2002); Proposal by Cuba et al., Cuba et al. - Special and Differential Treatment Provisions, TN/CTD/W/2 (May 14, 2002). Many of these proposals were considered again at the Cancun Ministerial Meeting. See, e.g., Special Session of the Committee on Trade and Development, Report to the General Council, TN/CTD/7 (Feb. 10, 2003); General Council, Draft Cancun Ministerial Text, JOB(03)/150/Rev.2 (Sept. 13, 2003). However, a number of these proposals were then dispatched to various committees dealing more specifically with negotiations on the substantive issues at stake. According to some representatives, several developing countries resisted that dissemination because it made the process much harder for them to monitor and participate in the discussions since they were not necessarily able to simultaneously follow the activities of all committees.
122. The United Nations maintains a list of Small Island Developing States (U.N. and non-U.N. members) and has recognized the need for special measures in favor of these countries since 1994, calling particular attention to these countries' vulnerabilities in the context of the Uruguay Round. G.A. Res. 49/100, U.N. Doc. A/RES/49/100 (Feb. 24, 1995). The United Nations also has defined a list of Landlocked Developing Countries. See generally Office of the High Representative for the Least Developed Countries, Landlocked Developing Countries, and Small Island Developing States, http://www.un.org/ohrlls/ (last visited Mar. 22, 2007) for a survey of U.N. undertakings for LDCs, Small Island Developing States, and Landlocked Developing States. A number of countries belonging to these three groups have joined the coalition of Small and Vulnerable Economies at the WTO, even though the issues of each group are quite different.
123. The EC has an incentive to bring attention to the issue of Net Food Importing Countries to support its own position on the continuing subsidization of agriculture. See, e.g., Report of the Inter-Agency Panel to the General Council on the Marrakesh Ministerial Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Developing Countries, WT/GC/62 (June 28, 2003). As such, Net Food Importing Countries have found support among much more powerful members of the WTO, but there are important political risks attached to this type of proxy representation by an interested third party. Some rich members also are food importers, such as Japan. However rich members are not under the same type of economic pressure as poor food importers, as the latter lack a significant source of currency income that would decrease their sensitivity to rising world prices.
124. In 1998 and 1999 Chinese representatives declared that China would enter the WTO only with developing country status, prompting complaints from the United States and resulting in a compromise whereby China generally undertook full obligations as a developed country but benefited from some leeway in certain areas, particularly agriculture. Yet, China considers itself as a developing country member. See e.g., Long Yongtu, Vice Minister and Head of the Chinese Delegation, Address at the Eleventh Session of the Working Party on China (July 27, 2000, Geneva), http://www.fmprc.gov.cn/ce/cegv/eng/gjhyfy/ hy2000/t85629.htm;
125. Raj Bhala, An Essay on China's WTO Accession Saga, 15 AM. U. INT'L L. REV. 1469, 1474 (2000); Special Session of the Dispute Settlement Body, China - Responses to Questions on the Specific Input of China, TN/DS/W/57 (May 19, 2003). A similar debate arose regarding Russia's application for membership in the WTO.
126. See e.g., Colin B. Picker, Neither Here Nor There - Countries That Are Neither Developing Nor Developed in the WTO: Geographic Differentiation as applied to Russia and the WTO, 36 GEO. WASH. INT'L L. REV. 147, 169-71 (2004).
127. Enabling Clause, supra note 111, ¶ 7.
128. Appellate Body Report, European Communities - Conditions for the Granting of Tariff Preferences for Developing Countries, WT/DS246/AB/R (Apr. 7, 2004) [hereinafter Conditions for Tariff Preferences Appellate Report].
129. William H. Riker, Implications from the Disequilibrium of Majority Rule for the Study of Institutions, 74 AM. POL. SCI. REV. 432, 443 (1980);
130. see also Kenneth A. Shepsle & Barry R. Weingast, Structure-Induced Equilibrium and Legislative Choice, 37 PUBLIC CHOICE 503 (1981).
131. WTO Agreement art. IX:1.
132. GATT art. XXV:3-4.
133. Richard H. Steinberg, In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO, 56 INT'L ORGANIZATION 339, 344 (2002) (noting that only decisions on waivers and accessions have been taken by vote since 1959 and discussing the United States' strategic role in reinforcing consensus practice after the accession of most developing countries in the 1960s).
134. Among decisions affecting developing countries, see the Enabling Clause, adopted as a Ministerial Decision. Enabling Clause, supra note 111.
135. Silence generally is insufficient to constitute acquiescence in international law where concerns over respect of state sovereignty generally require the explicit agreement of the state for it to be bound. Consensus decision-making as it is practiced at the WTO does not require express consent. Majority decisions at the General Assembly of the United Nations do not result in binding resolutions in contrast to the reinforced procedures of the Security Council. Additionally decisions at the WTO by majority of votes cast mean that a numerical minority of members could adopt a decision binding on all members. Nonetheless, some other international organizations also provide for decision by majority of the votes cast. See ILO CONSTITUTION, art. 17(2).
136. Steinberg, supra note 123, at 344-45 (stating that "U.S. policymakers thought it would be impossible to reach an agreement on a weighted voting formula and expand the GATT into a broad-based organization that could attract and retain developing countries. Moreover, decision-making rules that were consistent with the principle of sovereign equality carried a normative appeal, particularly for less powerful countries.").
137. As noted by Kelsen, "equality does not mean equality of duties and rights, but rather equality of capacity for duties and rights." Hans Kelsen, The Principle of Sovereign Equality of States as a Basis for International Organization, 53 YALE L.J. 207, 209 (1944); see also Gerhart & Kella, supra note 6, at 528.
138. Steinberg, supra note 123, at 346; see generally THE ANATOMY OF INFLUENCE (Robert W. Cox & Harold K. Jacobson, eds.) (1973).
139. Diplomatic practice also has developed ways to stall a consensus decision procedure while avoiding the stigma of formally breaking the consensus.
140. WTO Agreement art XII:2.
141. Decisions up for adoprion by consensus by the full membership normally have been negotiated in smaller groups. Practice shows that this stage generally is considered too late to engage in further negotiations.
142. It is generally known that absence or abstention (formal or informal) due to lack of capacity is compounded by power plays whereby poor members may be given incentives to refrain from intervening or from attending meetings on particular issues.
143. See infra, Part III.B.
144. Given that EC members remain sovereign srares and that the EC is stopping short of becoming a federation, it would be politically difficult to cease giving each EC member one vote.
145. GATT art. XXIV:1.
146. Id. art. XXIV:2.
147. GATT art. XXIV:8(a) (defining cusroms unions as the "substitution of a single customs territory for two or more customs territories, so that (i) duties and other restrictive regulations of commerce (except, where necessary, those permitted under Articles XI, XII, XIII, XIV, XV and XX) are eliminated with respect to substantially all the trade between the constituent terrirories of the union of at least with respect to substantially all the trade in products originating in such territories, and, (ii) subject to the provisions of paragraph 9, substantially the same duties and other regulations of commerce are applied by each of the members of the union to the trade of territories not included in the union.").
148. GATT art. XXIV:8(b).
149. GATT art. XXIV:7. The overwhelming number of free-trade agreements in recent years has led to a collapse of this procedure, as most of them have not been reviewed, while a number were never even submitted for review in proper form. The effectiveness of this procedure is largely called into question and efforts to reform it into a more manageable process are on the organization's agenda.
150. WTO Agreement art. IX:2. See also Hunter Nottage & Thomas Sebastian, Giving Legal Effect to the Results of WTO Trade Negotiations: An Analysis of the Methods of Changing WTO Law, 9 J. INT'L ECON. L. 989, 1002-03 (2006).
151. Nottage & Sebastian, supra note 140, at 1001-02.
152. WTO Agreement art. IX:3 (meaning that waivers to the major multilateral agreements, such as the GATT, the GATS, and the TRIPS must be first examined by the relevant Council, which then reports to the members assembled in the Ministerial Conference per Article IX.3(b)).
153. GATT art. XXX; WTO Agreement art. X. The procedures are tiered and do not necessarily require a vote.
154. See, in particular, decision-making practices at the World Bank, the International Monetary Fund, the International Labor Organization, and regional development banks. See generally Amadou-Mahtar M'Bow, The Practice of Consensus in International Organizations, 30 INT'L SOC. SCI. J. 893 (1978);
155. Ebere Osieke, Majority Voting Systems in the International Labor Organisation and the International Monetary Fund, 33 INT'L & COMP. L. Q. 381, 392, 404-08 (1984).
156. Stephen Zamora, Voting in International Economic Organizations, 74 AM. J. INT'L L. 566, 568-69 (1980) ("[F]ormal [voting] procedures may profoundly affect the de facto decision-making process. Even where decisions are often taken informally, the resort to formal voting procedures remains a possibility and may have a profound effect on the willingness of members to arrive at a consensus, as well as on the type of consensus or compromise reached.").
157. Kelsen, supra note 127, at 211-12 ("Members of the society of nations may be presumed to be equal as a general principle; but when it appears that in certain aspects of legal equality they are organically unequal, it would seem that the law must either take cognizance of the facts or else admit its unreality.").
158. Zamora, supra note 145.
159. Id. at 589.
160. Id. at 591.
161. See, e.g., Osieke, supra note 144, at 400-02 (noting that the G-77, which had its home at the UNCTAD, voted as a bloc in the International Labor Organization on certain issues, and developing countries generally voted as a bloc on political issues).
162. The difficulty to amend WTO law is a serious obstacle. See generally Nottage & Sebastian, supra note 140. As an illustration, the amendment to the TRIPS Agreement mandated by the Doha Decision on Public Health has been open for signature for about three years, yet only six members have signed (the EC members' signature is expected soon), a far cry from the 100 signatures required for the amendment to come into effect. World Trade Organization, Amendment of the TRIPS Agreement, WT/L/641 (Dec. 8, 2005); World Trade Organization, Status of Acceptances, http://www.wto.org/english/ tratop_e/trips_e/amendment_e.htm (last visited Apr. 2, 2007).
163. However, it must be stressed that the proposed mechanism for improving decision-making procedures is separate and distinct from the debate over special and differential treatment and differentiation.
164. Steinberg, supra note 123, at 354.
165. See Ministerial Declaration, L/5424 (Nov. 29, 1982), GATT B.I.S.D. (29th Supp.) (1983). The Ministerial Declaration includes several paragraphs on the trade interests of developing countries generally. Id. at 5-6, 15-16. It also requires negotiations to take into account interests of developing countries. Id. at 4, 12 (textiles and clothing); id. at 9-10 (tropical products); id. at 10 (other tariff negotiations with a special mention of the problem of escalation clauses).
166. See infra Part I.A.2.
167. Hong Kong Declaration, supra note 44, ¶ 21, 41 ("We note the concerns raised by small, vulnerable economies, and instruct the Negotiating Group to establish ways to provide flexibilities for these Members without creating a sub-category of WTO Members.").
168. U.N. Charter art. 23, para. 1 ("The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the United Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of international peace and security and to the other purposes of the Organization, and also to equitable geographical distribution.").
169. Steinberg, supra note 123, at 355.
170. Somewhat ironically, an alternative procedure to the Green Room was first used at Seattle with negotiations taking place in small open-ended working groups, but when deadlocks remained as the deadline for closing the meeting approached, the U.S. Representative convened a Green Room meeting with the powerful members and some developing countries, including Egypt and Brazil. John Burgess, Green Room's Closed Doors Couldn't Hide Disagreements, WASHINGTON POST, Dec. 5, 1999, at A4;
171. Narendar Pani, Seattle Fails to Find Common Ground for Fresh Talks, ECONOMIC TIMES OF INDIA, Dec. 5, 1999 (noting that representatives from developing countries were forced away from the room by security forces);
172. African Countries Complained Friday, XINHUA GENERAL NEWS SERVICE, Dec. 4, 1999 (citing the South African representative: "If African delegates are unable to make their positions known through the formal structures of the WTO, then they stand little chance of making sure that these real issues are addressed.").
173. General Council, Minutes of the Meeting held in the Centre William Rappard on 17 and 19 July 2000, WT/GC/M/57 (Sept. 14, 2000) [hereinafter General Council July 2000 Meetings].
174. Id. ¶ 138-42 (comments by Bulgaria); id. ¶ 147 (comments by Saint Lucia); id. ¶ 157 (comments by Bolivia); id. ¶ 159-60 (comments by Egypt explicitly referring to the Green Room process and to the Seattle failure); id. ¶ 162 (comments by Barbados); id. ¶ 165 (comments by Pakistan).
175. Id. ¶ 149-53 (comments by Mexico, Singapore on behalf of the ASEAN group, Mauritius on behalf of the African Group, Colombia, and Jamaica).
176. See, for example, THE INTERNATIONAL COURT OF JUSTICE, THE INTERNATIONAL COURT OF JUSTICE: HANDBOOK 24 (5th ed. 2004), available at http://www.icj-cij.org/icjwww/igeneralinformation/ibleubook.pdf (for the informal geographic breakdown of judges at the International Court of Justice); see also G.A. Res. 60/251, ¶ 7, U.N. Doc. A/RES/60/251 (Apr. 3, 2006) (for the formal allocation of seats on the Human Rights Council of the United Nations); see also discussion in Part 2.2.2.
177. On tariff negotiations, see generally ANWARUL HODA, TARIFF NEGOTIATION AND RENEGOTIATION UNDER THE GATT AND THE WTO: PROCEDURES AND PRACTICES (2001).
178. GATT art. XXVIII:1.
179. Interpretative Note ad Article XXVIII, Oct. 30, 1947, ¶ 1.4, General Agreement on Tariffs and Trade, 61 Stat. A-11, 55 U.N.T.S. 194, Annex I (emphasis added).
180. Id. ¶ 1.5 (emphasis added).
181. Understanding on the Interpretation of Article XXVIII of the General Agreement on Tariffs and Trade, ¶ 1, LT/UR/A-1A/1/GATT/U/6 (April 15, 1994) (emphasis added).
182. Id.
183. Committee on Market Access, Minutes of the Meeting of 23 March 2000, ¶ 4.6, G/MA/M/23 (May 12, 2000).
184. Interpretative Note ad Article XXVIII, supra note 166, ¶ 1.7.
185. PETROS C. MAVROIDIS, THE GENERAL AGREEMENT ON TARIFFS AND TRADE - A COMMENTARY 92 (2005) (citing Committee on Tariff Concessions, Minutes of Meeting held on 19 July 1985, ¶ 55.10, TAR/M/16 (Oct. 4, 1985)).
186. Sam Laird, Market Access Issues, in DEVELOPMENT, TRADE AND THE WTO: A HANDBOOK 11 (Bernard Hoekman et al. eds., 2002). The Geneva Tariff Conference (1947), the Annecy Tariff Conference (1949), the Torquay Tariff Conference (1950-1951), the 1956 Geneva Tariff Conference and the Dillon Round (1960-1961) used the bilateral item-by-item request and offer negotiation system. The Kennedy Round (1964-1967) used a linear tariff cut system (proposed across the board cut of 50 percent). The Tokyo Round (1973-1979) used a more complex "Swiss" formula applying a reduction coefficient to the initial tariff rates. In the Uruguay Round, various members (including the EC, Canada, Japan, and Switzerland) proposed various formula, but the United States insisted on a bilateral per product request and offer system.
187. Anwarul Hoda & Monika Verma, Market Access Negotiations on Non-Agricultural Products: India and the Choice of Modalities, 10-14 (Indian Council for Research on Int'l Econ. Rel., Working Paper No. 132, 2004). Developing countries were not required to participate in the tariff reduction in the Kennedy and Tokyo Rounds due to the recognition of non-reciprocity. Committee on Trade and Development, Note by the Secretariat: Objectives of the Kennedy Round Negotiations for Less-Developed Countries, COM.TD/W/69 (Oct. 24, 1967), GATT B.I.S.D, (14th Supp.) at 19 (1968); Declaration of Ministers, ¶ 5-6, MIN(73) (Sept. 14, 1973), GATT B.I.S.D, (20th Supp.) at 19 (1974).
188. FOOD AND AGRICULTURE ORGANIZATION, STATE OF AGRICULTURAL COMMODITY MARKETS 25 (2004), available at ftp://ftp.fao.org/docrep/fao/007/y5419e/y5419e00.pdf.
189. Id.
190. Id.
191. Hong Kong Declaration, supra note 44, ¶ 11-12.
192. Sub-Committee on Cotton, Sectoral Initiative in Favour of Cotton - Proposed Modalities for Cotton, TN/AG/SCC/GEN/4 (March 1, 2006).
193. Hong Kong Declaration, supra note 44, ¶ 14.
194. Hoda & Verma, supra note 173, at 20 (discussing negotiations on modalities in the Doha Round). Some developing countties have submitted proposals regarding formula-based rariff negotiations in the Doha Round. Id. at 25-26, 31, 35-36.
195. Developing countries also have chosen a request-and-offer mechanism in other fora. Such is the case, for example, in the Global System of Trade Preferences, a forum for South-South market access negotiations system operating on the basis of request-and-offer. UNCTAD.org, Global System of Trade Preferences among Developing Countries, http://www.unctadxi.org/templates/ News_1723.aspx (last visited Apr. 2, 2007).
196. Decision of the Contracting Parties, (June 25, 1971), GATT B.I.S.D. (18th Supp.) at 24 (1972) (relating to the establishment of generalized, non-reciprocal and non-discriminatory preferences beneficial to the developing countries); Enabling Clause, supra note 111, ¶ 1.
197. See generally Arvind Panagariya, EU Preferential Trade Policies and Developing Countries, 25 WORLD ECONOMY 1415 (2002).
198. Gordon, supra note 42, at 117-18.
199. Subedi, supra note 66, at 431. A prominent example of such a duty-free program is the EC's Everything But Arms Initiative. Yet, blanket provisions granting duty-free access to exports from LDCs tend to be less contentious than other programs.
200. Other generalized preference programs are in place in Japan, Canada, Norway and Switzerland. See UNCTAD Secretariat, Quantifying the Benefits Obtained by Developing Countries from the Generalized System of Preferences, UNCTAD/ITCD/TSB/Misc.52 (Oct. 7, 1999).
201. African Growth Opportunity Act (AGOA), in Trade and Development Act of 2000, 19 U.S.C. § 3701 (2001).
202. Jeffery M. Brown, Beyond Nationalism and Toward a Dynamic Theory of Pan-African Unity, 6 BERKELEY J. AFR.-AM. L. & POL'Y 60, 61 (2006).
203. Council Regulation 2501/2001, O.J. (L 346) 1 (applying a scheme of generalised tariff preferences from January 2002 to December 2004); see also Gerhart & Kella, supra note 6, 542-45.
204. The only beneficiaries under the Drug Arrangements were Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Pakistan, Panama, Peru, and Venezuela. Council Regulation 2501/2001, supra note 189, col. 1, Annex I. In contrast with the environmental and labor rights schemes, the Drug Arrangements did not include criteria for additional countries to request participation in the scheme. Id. art. 2, 4.
205. Panel Report, European Communities - Conditions for the Granting of Tariff Preferences for Developing Countries, ¶ 1.5, WT/DS246/R, (Dec. 1, 2003) [hereinafter Conditions for the Tariff Preferences Panel Report].
206. Id, ¶ 8.1(f).
207. Conditions for Tariff Preferences Appellate Report, supra note 119, ¶ 159-63. The Enabling Clause requires that special treatment awarded by a developed country "be designed and, if necessary, modified, to respond positively to the development, financial and trade needs of developing countries." Enabling Clause, supra note 111, ¶ 3(c).
208. The EC is now faced with unanimous criticism regarding its proposed implementation scheme. It proposes to grant the preferences to countries that are parties to certain listed treaties. Although this appears to be an objective criteria for selecting beneficiaries, in line with the Appellate Body's requirement, the list of treaties is arbitrary and in fact built to include only the beneficiaries that the EC had previously designated.
209. Conditions for Tariff Preferences Panel Report, supra note 191, ¶ 5.1-5.3, 5.21-5.32. See also Robert Howse, India's WTO Challenge to Drug Enforcement Conditions in the European Community Generalized System of Preferences: A Little Known Case with Major Repercussions for "Political" Conditionality in U.S. Trade Policy, 4 CHI. J. INT'L L. 385, 402 (2003).
210. Conditions for Tariff Preferences Appellate Report, supra note 119, ¶ 56-60.
211. El Salvador, Guatemala, Honduras, and Nicaragua are the Central American beneficiaries. Conditions for Tariff Preferences Panel Report, supra note 191, ¶ 5.64.
212. Id. ¶ 5.65-5.71.
213. Id. ¶ 5.59-5.61.
214. Conditions for Tariff Preferences Appellate Report, supra note 119, ¶ 61-63.
215. Id. ¶ 64-67.
216. Conditions for Tariff Preferences Panel Report, supra note 191, ¶ 5.82-5.84. American and European political priorities after September 11, 2001 may account for the renewed interest in fostering ties with Pakistan, but this could not be argued at the Dispute Settlement Body.
217. Id. ¶ 5.72.
218. Howse, supra note 195, at 403-04.
219. Conditions for Tariff Preferences Appellate Report, supra note 119, ¶ 72-77.
220. Conditions for Tariff Preferences Panel Report, supra note 191, ¶ 5.108-5.110.
221. Paraguay argues that it is plagued by drug trafficking problems similar to those of other countries that were included in the Drug Arrangements. See id. ¶ 5.132. Although Paraguay's main trading partners are Argentina, Brazil and Uruguay (with which it forms MERCOSUR), its exports to the EU market represent 13.7 percent of Paraguay's total exports. Europa, The EU's Relations with Paraguay, http://ec.europa.eu/comm/external_relations/paraguay/intro/index. htm (last visited Mar. 10, 2007).
222. Conditions for Tariff Preferences Panel Report, supra note 191, ¶ 5.107.
223. Id. ¶ 5.106, 5.117, 5.126.
224. Id. ¶ 5.124; see also id. ¶ 5.125 (¶Paraguay posits that the implication of the European Communities' approach is that developed countries could manipulate the GSP system so as to pursue their own political agenda and that the rule-based character of the multilateral trading system would be completely undermined.").
225. Given the number of third-party participants in this case and the issue of interested parties which were not GATT members the Panel had to elaborate special procedures. Chi Carmody, Of Substantial Interest: Third Parties under GATT, 18 MICH. J. INT'L L. 615, 642-643 (1997).
226. The complex series of complaints related to the EC's regime for banana imports dates back to 1995. It has involved a number of countries over the years, including Ecuador, Guatemala, Honduras, Mexico, Panama, and the United States, and has resulted in several Panel Reports, Appellate Body Reports, and arbitrations on implementation where the EC consistently lost but continued its policy under various waivers. As a result, the EC has been required to transform its approach to preferential access to ACP banana producers and compensate non-ACP countries. For a brief historical overview of the dispute, see WTO DISPUTE SETTLEMENT: ONE-PAGE CASE SUMMARIES (1995-SEPTEMBER 2006) 8-9 (WTO, ed.) (2007);
227. Hunter R. Clark, The WTO Banana Dispute Settlement and Its Implications for Trade Relations between the United States and the European Union, 35 CORNELL INT'L L.J. 291, 294-303 (2002);
228. see also Raj Bhala, The Bananas War, 31 MCGEORGE L. REV. 839 (2000).
229. Panel Report, European Communities - Regime for the Importation, Sale, and Distribution of Bananas (Complaint by the United States), at 27-28, WT/DS27/R/USA, (May 22, 1997), [hereinafter Regime for the Importation, Sale and Distribution of Bananas Panel Report].
230. Id. at 263-64.
231. Id. at 29-30. Guatemala and Honduras complained on additional grounds both on tariff violation and market allocation issues. All complaining parties also claimed that the EC offered easier import licensing procedures to ACP-originating products, which resulted in an unfair discrimination between ACP and non-ACP producers.
232. Id.
233. Id. at 266.
234. Id. at 285.
235. Id. at 286. This group's position therefore differed from the complaint brought by the United States that challenged the validity of the banana regime under the EC's general GATT obligations. Id. at 294.
236. Id. at 287.
237. Id. at 290.
238. Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R (Apr. 27, 1998); Panel Report, United States - Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998). The Appellate Body found that the application of the U.S. measure restricting imports of shrimp harvested without TEDs was a violation of WTO law and was not justified under the general exception on the conservation of natural resources (Article XX(G) of the GATT of 1994) because it was unjustifiably arbitrary and discriminatory. Id.
239. Id. Although Thailand was certified by the United States, it stated in the proceedings char none of its fishing vessels used the TEDs. Other countries were determined to harvest shrimp in a manner or in waters that did not pose a risk to the conservation of sea turtles. Id.
240. In 2006 Ecuador, Thailand, Indonesia and China accounted for 64 percent of shrimp imports into the United States. Vietnam and Malaysia also constitute major suppliers. See NOAA Office of Science and Technology, Monthly Imports of Shrimp Report, available at http://www.st.nmfs.gov/st1/ market_news/doc74.txt (last visited Mar. 25, 2007).
241. Appellate Body Report, supra note 222, ¶ 4.1-4.71.
242. Id.
243. Id.
244. Id.
245. Understanding on Rules and Procedures Governing the Settlement of Disputes, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 2, Legal Instruments - Results of the Uruguay Round, 33 I.L.M. 1125 (1994) [hereinafter DSU].
246. Id. art. 9.
247. Id. arts. 21-22.
248. Appellate Body Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/AB/R (Dec. 19, 1997); Panel Report, India - Patent Protection for Pharmaceutical and Agricultural Chemical Products, WT/DS50/R (Sept. 5, 1997).
249. Id. ¶ 7-16.
250. That is not to say that bilateral trade agreements may not have been motivated by other factors such as more general political or economic partnerships, or the pursuit of a progressive regional integration strategy. Certainly, no single cause can be seen behind the conclusion of a bilateral trade agreement between a rich and a poor country.
251. Braithwaite, supra note 81, at 313.
252. Abbott, supra note 85, at 354.
253. Braithwaite, supra note 81, at 313-14.
254. Id. n.41. The correlation is not perfect and some agreements pre-dated the country's activism in the Cairns Group or the G-20 (Mexico's membership in NAFTA, for example). Moreover, certain key players in the G-20, such as Brazil, are not recorded as having been offered a bilateral free trade agreement. United States Trade Representative, Brazil and Offer of Bilateral Trade Agreement, http://www.ustr.gov/Trade_Agreements/Bilateral/Section_Index. html (last visited March 25, 2007).
255. Braithwaite, supra note 81, at 314-15. See also Drahos, supra note 81, at 784-85 (noting that loose groups are "more susceptible to divide-and-conquer tactics of strong States").
256. Abbott, supra note 85, n.184.
257. Drahos, supra note 81, at 780. See also Gunnar Sjostedt, Negotiating the Uruguay Round of the General Agreement on Tariffs and Trade, in INTERNATIONAL MULTILATERAL NEGOTIATION: APPROACHES TO THE MANAGEMENT OF COMPLEXITY 44, 44-54 (I. William Zartman ed., 1994), on coalition straregies leading to the negotiation of the TRIPS Agreement during the Uruguay Round.
258. James Thuo Gathii, Patents, Markets and the Global Aids Pandemic, 14 FLA. J. INT'L L. 261, 316-17 (2002). See also Okediji, supra note 4, at 844-46 (noting the role of domestic U.S. private entities in the threat and use of unilateral sanctions and the role of the pharmaceutical industry in mirroring the coalition between the United States, Europe, and Japan at the industry level).
259. The TRIPS Agreement already provided for compulsory licensing, which allows a developing country to license the manufacturing of patented drugs by other than the patent holder, effectively creating generic drugs under certain conditions in cases of public health emergencies. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments - Results of the Uruguay Round, 33 I.L.M. 1197 (1994) [hereinafter TRIPS Agreement].
260. Id. The Declaration reiterated and reinforced the availability of compulsory licensing but it failed to provide a clear position on parallel importing, which would enable developing countries lacking production capacity to have access to cheap drugs produced in a third country. Id.
261. See Eyal Benvenisti & George W. Downs, Distributive Politics, and International Institutions: The Case of Drugs, 36 CASE W. RES. J. INT'L L. 21, 27 (2004).
262. Id. at 43.
263. Id. at 28. A coalition of Caribbean countries first concluded a deal to obtain AIDS drugs at a discount price and a group of middle-income Latin American countries led by Brazil later secured a deal with Abbott Laboratories, Inc., a U.S. pharmaceutical firm, in October 2005. The authors note that large middle-income developing countries could gain leverage in part because they represent a telatively attractive marker for drug manufacturers and have the capacity to produce generic drugs if they are not offered terms acceptable to them. Id. However, Benvinisti and Downs raised doubts as to whether the prices theses coalitions obtained were more advantageous than those secured by individual countries. Id. at 44-45.
264. Christine Thelen, Carrots and Sticks: Evaluating the Tools for Securing Successful TRIPS Implementation, 24 TEMP. J. SCI. TECH. & ENVTL. L. 519, 539 (2005).
265. These include agreements signed or negotiated with Australia, Bahrain, Chile, Morocco, Singapore, Thailand, members of the Andean Community, the Southern Africa Customs Union ("SACU"), and the plurilateral CAFTA agreement. Regarding CAFTA, see Carlos M. Correa, Bilateralism in Intellectual Property: Defeating the WTO System for Access to Medicines, 36 CASE W. RES. J. INT'L L. 79, 85-94 (2004) (reviewing how U.S. negotiations with CAFTA have resulted in increasing the intellectual property standards of CAFTA members).
266. Graeme B. Dinwoodie, The International Intellectual Property System: New Actors, New Institutions, New Sources, 98 AM. SOC'Y INT'L L. PROC. 213, 215-16 (2004).
267. Thelen, supra note 248, at 540, 544.
268. Abbott, supra note 85, at 350-51.
269. This includes trade agreements with the Palestinian Authority, South Africa, and Tunisia. See Correa, supra note 249, at 80.
270. See Abbott, supra note 85, at n.255 (noting the limitations of CAFTA provisions and the U.S.-Morocco FTA).
271. Id. at 352-53.
272. Benvenisti & Downs, supra note 245, at 45.
273. See, e.g., Gary G. Yerkey, Developing Countries Block U.S. Plan to Include Labor Issue in Work Agenda, 13 INT'L TRADE REP. (BNA) 1925 (1996) (noting that the trade-labor issue was blocked even before the Singapore ministerial meeting).
274. Gordon, supra note 42, at 119.
275. India - Statement by Minister of Commerce, WT/MIN(96)/ST/27 (Dec. 9, 1996) (opposing negotiations on investment at the WTO and raising issues regarding the trade-labor linkage).
276. Burt, supra note 56, at n. 282.
277. See Malaysia - Statement Minister of International Trade and Industry, WT/MIN(96)/ST/64 (Dec. 11, 1996); Indonesia - Statement by Minister of Industry and Trade, WT/MIN(96)/ST/22 (Dec. 9, 1996); Pakistan - Statement by Minister of Commerce, WT/MIN(96)/ST/29 (Dec. 9, 1996) (referring to the work by UNCTAD on foreign investment and questioning the issue of trade and labor). Other countries had more ambivalent positions, agreeing on principle to the examination of investment and competition issues within the WTO but also referring to UNCTAD's work in the area and referred to the competence of the International Labor Organisation regarding labor and trade. See, e.g., Venezuela - Statement by Permanent Representative to the United Nations, WT/MIN(96)/ST/100 (Dec. 12, 1996); Nigeria - Statement by Minister of Commerce and Tourism, WT/MIN(96)/ST/111 (Dec. 12, 1996); Egypt - Statement by Minister of Trade and Supply, WT/MIN(96)/ST/73 (Dec. 11, 1996); Tanzania - Statement by Minister of Industries and Trade, WT/MIN(96)/ST/50 (Dec. 10, 1996) (speaking on behalf of the Southern African Development Community (SADC) state members of the WTO, which include Angola, Botswana, Lesotho, Malawi, Mauritius, Mozambique, Namibia, South Africa, Swaziland, Tanzania, Zambia, and Zimbabwe).
278. See World Trade Organization, Singapore Ministerial Declaration of 13 December 1996, WT/MIN(96)/DEC, 36 I.L.M. 218 (1997).
279. Burt, supra note 56, at 1052-53.
280. See, e.g., Memorandum of Understanding between the Governments of the United States of America and the People's Republic of China Concerning Trade in Textiles and Apparel Products, U.S.-P.R.C., Nov. 8, 2005, State Dep't No. 06-17, 2006 WL 521443; Memorandum of Understanding on Textiles Between the European Community and China, E.U.-P.R.C., June 10, 2005, (SEC 2005) 830. Meanwhile, India and Pakistan united their efforts, in a rare political common move, to push for greater liberalization in textiles and clothing trade during the Doha Ministerial meeting. See Joint Statement of the Commerce Ministers of the South Asian Association for Regional Co-operation, Sri Lanka - Statement on the Forthcoming Doha Ministerial Conference, WT/L/412 (Aug. 23, 2001) (calling for "a more meaningful integration of the textile and clothing sector, in view of the very limited liberalization of trade, affecting items under specific quota restraints").