The trade and development policy of the European union

European Journal of International Law

Volumn 18, Issue 4, 2007, Pages 715-756

  Bartels, Lorand ^a  

^a UNIVERSITY OF CAMBRIDGE   (United Kingdom)

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EID: 36649014531     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chm042     Document Type: Article

References (360)

1. Schuman, 'A United States of Europe', reprinted in Selection of Texts Concerning Institutional Matters of the Community from 1950 to 1982 (1982), 47-48; available at: www.ena.lu?lang=2&doc=613. Interestingly, the italicized sentence (and only this sentence) is omitted from the text ofthe speech reproduced on the EU website at http://europa.eu/abc/symbols/9-may/decl_en.htm.
2. Art. 3 (k) EEC Treaty; now Art. 3 (s) EC.
3. For an explanation based on changes in the EU's membership see Lesage and Kerremans, 'The Political Dynamics Behind US and EU Trade Initiatives Towards the Least Developed Countries', in G. Faber and J. Orbie, European Union Trade Politics and Development: Everything But Arrns Unravelled (2007).
4. Art. 111-193 (2)(e) (emphasis added) and Art. III-193(3) para 2 TCE.
5. European Commission, EU Strategy for Africa: Towards a Euro-African Pact to Accelerate Africa's Development, COM(2005)489 final, 12 Oct. 2005, 3.
6. The French Union was established in the French Constitution of 27 Oct. 1946. The French Union included France (and its overseas departments), the African colonies (on which see infra note 24), a North African group, and an Indo-Chinese group. In the Constitution of 4 Oct. 1958 the French Union was reconfigured as the 'French Community'.
7. J.P. Agarwal, Die Assoziierung der überseeischen Staaten und Gebiet mit der Europaischen Wirtschaftsgemeinschaft und die Auswirking dieser Assoziierung aufdie Ausfuhr der nichtassoziierten Entwicklungslander in diese Gemeinschaft (1966), 9, based on OECD figures; cf figures for 1954 in T. Hayter, French Aid (1966), 61.
8. Ndongko, 'The Economic Origins ofthe Association of Some African States with the European Economic Community', 16 African Studies Review (1973) 219, at 225 n. 2, quoting P Moussa, L'economie de la Zone Franc (1960).
9. Fieldhouse, 'The Economics of French Empire', 27 Journal of African History (1986) 169, at 170.
10. F. Lynch, France and the International Economy: Frorn Vichy to the Treaty of Rome (1997), 199. This was also recognized in the jeanneney Report, commissioned in 1963 by the French Government, which distinguished between economic and 'real' (mainly humanitarian) reasons for continuing the association: La politique de cooperation avec les pays en voie de développement, Rapport de la Commission d'Etude instituée par le décret du 12 mars 1963, remis au Gouvernement le 18 juillet 1963 (the 'Jeanneney Report'). An abridged translation is available as Overseas Development Institute, French Aid: The Jeanneney Report (1964).
11. C. Cosgrove Twitchett, Europe and Africa: From Association to Partnership (1978), 10
12. Agarwal, supra note 7, at 9-11
13. Hayter, supra note 7, at 73-77.
14. Fieldhouse, supra note 9, at 170.
15. Comment by Lucia Coppolaro. For discussion of the economic importance of European regionalism at the time see L. Coppolaro, The United States of America and the European Economic Conununity in the GATT Negotiations of the Kennedy Round (1962-1967) (PhD Dissertation, EUI, 2006), at 74-83.
16. See, generally, Martin, 'Africa and the Ideology of Eurafrica: Neo-Colonialism or Pan-Africanism?', 20 Journal of Modern African Studies (1982) 221
17. and Kawasaki, 'Origins of the Concept of the "Eurafrican Community"', available at: www.kasei.ac.jp/library/kiyou/2000/2.KAWASAKI.pdf. Economically, 'Eurafrica' was understood to be based on a division between cheap land and labour in Africa and skills and capital in Europe: Martin, supra, at 222.
18. E. Grilli, The European Community and the Developing Countries (1994), at 332-333, notes the tension between this view and the notions of development expressed in the EEC Treaty.
19. Assemblée ad hoc: Debats, 10 Mar. 1953, at 510; quoted in Cosgrove Twitchett, supra note 11, at 5.
20. The proposed association included the two Belgian territories, Italian Somaliland (due for independence in 1960) and Netherlands New Guinea, but not the Netherlands Antilles, whose petroleum refining industry (based on Venezuelan crude oil) competed with French production. See W. Gorrell Barnes, Europe and the Developing World: Association under Part IV of the Treaty of Rome (19 6 7), at 25,
21. and infra note 87.
22. Statement on 20 Dec. 19 5 6 by French Premier Mollet, Marchés Tropicaux du Monde, 29 Dec. 1956, 3422 (trans. Kawasaki) in Kawasaki, supra note 14, at 23.
23. Le Monde, 11 Jan. 1957, 7 (trans. Kawasaki) in Kawasaki, supra note 14, at 23.
24. Belgian Congo, Rwanda-Burundi, French Equatorial Africa (by virtue of the 1883 Congo Basin Treaties) and Togo, Cameroon and Italian Somaliland (by virtue of Trusteeship Agreements) were bound to trade on a non-discriminatory basis.
25. See E. Becher, Das Assoziierungsverhaltnis zur Europaischen Wirtschaftsgemeinschaft (PhD dissertation, Freie Universität Berlin, 1963), at 213.
26. History proved this to be correct: Even with colonial non-discrimination obligations for Community imports from 1960 to 1969 the share of the other five Member States grew from 21% to just 25%: Kreinin, 'Some Economic Consequences of Reverse Preferences', 11 JCMS (1973) 161, at 171.
27. A cultural explanation for the dominance of French exports is also given by Soper, 'A Note on European Trade with Africa', 67 African Affairs (1968) 144, at 146.
28. See also infra note 37.
29. Germany imported only 3% of its tropical products (coffee, cocoa and bananas) from the colonies and the remainder largely from Brazil and Ghana, and the Netherlands, Luxemburg, and Italy were in a similar situation: Wells, 'The EEC and Trade with Developing Countries', 4 JCMS (1965) 150, at 157.
30. The plan was set out in a joint Franco-Belgian memorandum of 11 Oct. 1956: R. Lemaignen, L'Europe au berceau (1964), at 20
31. cited in Cosgrove Twitchett, supra note 11, at 11.
32. The Spaak Report on the EEC, submitted on 21 Apr. 1956, made no mention at all of Africa, and it was only on 29 May 1956, the first day of the Venice Conference of Foreign Ministers, at which this Report was considered by the EEC Foreign Ministers, that France demanded association. The story is retold by several authors, including Cosgrove Twitchett, supra note 11, at 7-9.
33. Annex IV to the EEC Treaty lists these as: French West Africa (eight territories: Senegal, French Sudan (now Mali), French Guinea (now Guinea), Ivory Coast, Dahomey (now Benin), Mauritania, Niger and Upper Volta (now Burkina Faso)); French Equatorial Africa (four territories: Middle Congo, Ubangui-Sari, Chad and Gabon); French Togoland; Belgian dependent territories (two territories: Belgian Congo, Rwanda-Burundi); Italian territory (Somaliland); Netherlands dependent territory (New Guinea); other French dependencies (St Pierre and Miquelon, the Comoros Archipelago, Madagascar and dependencies, French Somaliland, New Caledonia and dependencies, French settlements in Oceania, Southern and Antarctic Territories).
34. Art. 3(k) EEC Treaty; now Art. 3(s) EC. It is notable that the 'tasks' of the EEC in Art. 2 EEC Treaty are focused on domestic matters.
35. With the addition ofthe UK to the list of Member States in para. 1, and the change in cross-reference from Annex IV to Annex II, this provision (now numbered Art. 182) is exactly the same in the current version of the EC Treaty.
36. The Implementing Convention (IC) was provided for in Art. 136 EEC and was included at German insistence. Its duration was limited for a number of reasons: The political future of the territories was uncertain (Italian Somaliland was due for independence in 1960; and Cameroon, Togo and Rwanda-Burundi were under nominal UN jurisdiction: Cosgrove Twitchett, supra note 11, at 19). It was also unrealistic to expect continuing development aid commitments; and the entirely experimental nature ofthe system suggested that there should be a sunset clause on the proposed arrangements: ibid., at 17.
37. Part IV set up the principle ofthe mutual right ofestablishment between the Member States and the territories (Art. 132(5) EEC) though to be implemented gradually (Art. 8IC). This principle was introduced at the insistence of Germany, which hoped thereby to break into the colonial markets: Cosgrove Twitchett, supra note 11, at 24-25. Part IV also established the principle of free movement of OCT workers in the Member States, to be governed by later agreement between the Member States (Art. 135 EEC). No such agreement eventuated and the subject was abandoned. See Gorrell Barnes, supra note 16, at 14.
38. Arts 13 and 14 EEC (duties) and Arts 32-33 EEC (quotas); Art. 8(1) EEC (transitional period).
39. Arts 30 and 34 EEC.
40. Arts 31-35 EEC.
41. Though see infra note 71 for the non-transposition of obligations on internal taxes. For a very useful discussion, see UN Economic Commission for Africa, The Impact of Western European Integration on African Trade and Development, A/CN. 14/72, 7 Dec. 1960.
42. Arts 9 IC, 133(1) EEC (duties), and 10 IC (quotas). As the Implementing Convention was for a shorter period (5 years) than the transitional period (12 years), Art. 14 IC provided that the quotas in existence after 5 years would remain in effect after its expiry.
43. Art. 133(4) EEC. These are listed supra at note 19.
44. In Case C-2 60/90, Le Plat v. French Polynesia [1992] ECR 1-643, para. 15, the ECJ interpreted the term 'duties' in this provision to include measures of equivalent effect.
45. Arts 9 IC and 133(2) EEC (duties), and Art. 111C (quotas). See also Art. 141C.
46. Becher, supra note 20, at 212-215.
47. Art. 133(2) EEC.
48. Art. 133(3) EEC.
49. Art. 3(2)(2) and Prot. 1 Art. 4 Yaoundé I and Art. 3 2) and Prot. 2 Yaoundé II.
50. Senegal imposed customs duties (and quotas) in 1960 in response to a loss of market in Mali which were unauthorized but not contested: A. Rivkin, Africa and the European Common Market: A Perspective (2nd edn., 1966), at 9 n. 3. Concerning the non-invocation of this provision in Yaoundé I see Convention of Association between the European Economic Community and the Associated African and Malagasy States - Questions and Replies, GATT Doc L/3425, 12 Aug. 1970, 11, and concerning its non-invocation in Yaoundé II see Biennial Report on the Association between the European Economic Community and the African and Malagasy States - Communication from the Parties to the Agreement, GATT Doc L/3792, 24 Jan. 1973, 1.
51. Art. 15IC and Protocols on bananas and coffee.
52. See infra note 99.
53. Guinea refused to join the French Community on 28 Sept. 1958. In response, France abandoned the country, leaving it without even light bulbs and telephone wire: T. Hayter, French Aid (1966), at 30.
54. Except for the French Somali Coast. These countries (known as the African and Malagasy States) were Burundi (formerly part of Rwanda-Burundi), Cameroon, Central African Republic, Chad, Democratic Republic of Congo, Congo (Brazzaville), Dahomey (now Benin), Gabon, Ivory Coast, Madagascar, Mali (formerly part of French Sudan), Mauritania (formerly part of French Sudan), Niger, Rwanda, Senegal, Somalia, Togo, Upper Volta (now Burkina Faso). Mauritius joined Yaoundé II in 1973: See infra note 93.
55. The legal basis of the Yaoundé I Convention was a matter of some dispute. France sought continuity, and (supported by the European Commission) argued that Part IV could continue as the legal basis, while others considered the association provision, Art. 238 (now Art. 310), to be more appropriate. The debate is discussed in van Bentham van den Bergh, 'The New Convention of Association with African States', 1 CML Rev (1963) 156, at 163
56. Feld, 'The Association Agreements of the European Communities: A Comparative Analysis', 19 Int'l Org (1965) 223
57. and Sciolla-Lagrange, 'The Preferential Areas Associated with the European Economic Community', in D. Thompson (ed.), The Expansion of World Trade: Legal Problems and Techniques (1965), at 43.
58. Council Dec. 349/64 [1964] JO 93 1472.
59. Feld, supra note 47, at 243, considers these institutions weaker than those in the Greece and Turkey association agreements and considers their main function to be psychological, in 'bolster[ing] the self-respect and confidence of the African members'.
60. This was a French concession in exchange for continuation ofthe association. See Van Bentham van den Bergh, supra note 47, at 162-164.
61. For figures see GATT Doc L/3425, supra note 41, Annex III. Duties on tea and tropical hardwoods were suspended by the EEC (and the UK) on 1 Jan. 1964: See Gorrell Barnes, supra note 16, at 17. The German banana quota was retained; Italy and the Benelux countries (gradually in the latter case) lost their dutyfree coffee quota.
62. The products concerned were pineapples, coconut, coffee, tea, uncrushed pepper, vanilla, uncrushed cloves, unground nutmeg, and cocoa beans. See Art. 2 (2) and Annex Yaoundé 1.
63. Arts 2(1) (duties) and 5(1) (quantitative restrictions) Yaoundé I. Yaoundé II, which was signed 3 years later in 1969, contained simple prohibitions on duties and quantitative restrictions: Arts 2(1) (duties) and 6(1) (quantitative restrictions).
64. Council Dec. 66/532 (the 'Acceleration Decision') [1966] JO 165 2971.
65. Art. 11(1) Yaoundé 1.
66. Prot. 1 Art. 1 Yaoundé II.
67. The timetables were slowed slightly: See Art. 2 and Prot. 1 (duties) and Art. 6(1) and Prot. 2 (quantitative restrictions) Yaoundé I.
68. Art. 5 (1) Yaoundé I.
69. Arts 3(1) (duties) and 7(1) (quantitative restrictions) Yaoundé II. By 1965, 13 of the 18 associates had removed all duties on EEC imports: Report of the Working Party on EEC/Association of African and Malagasy States and of Non-European Territories, GATT Doc L/2441, 3 June 1965, para. 5.
70. Art. 6(3) Yaoundé 1; Art. 7(2) Yaoundé II.
71. Duties were not applied, and, while quotas were occasionally applied, this was only on insignificant trade: See GATT Doc L/342 5, supra note 41, at 11
72. and GATT Doc L/3792, supra note 41, at 1-3 (up to 1973).
73. Intra-territory trade was insignificant to begin with, and it is questionable (as always) whether the absence of liberalization was a major factor in its failure to develop. It increased from just 1% in 1960 to 6% in 1969: Kreinin, supra note 20, at 171. On the other hand, Grilb, supra note 14, at 147-148, considers that this hindered the economic development in the associates, a view borne out by modern regional initiatives.
74. Arts 8 and 9 Yaoundé II permitted Yaoundé-consistent agreements between the associates; and Arts 12-14 Yaoundé II permitted agreements between the associates as well as Yaoundé-consistent agreements between these and other countries.
75. Additional arguments apply in the context of regional trade agreements, which necessarily harm third countries. See infra at text to note 292.
76. This summary and the anecdote are taken from A. Milward, Politics and Economics in the History of the European Union (2005), at 97.
77. Kreinin, supra note 20, at 167.
78. Art. 13 Yaoundé I and Art. 16 Yaoundé II. There was no equivalent clause under the EEC Treaty.
79. GATT Doc L/342 5, supra note 41, at 15 (for Yaoundé I) and Young, 'Association with the EEC: Economic Aspects ofthe Trade Relationship', 11 JCMS (1972) 120, at 122 (up to 1972).
80. P.N.C. Okigbo, Africa and the Common Market (1967), at 32-36.
81. For coffee the German import duty was $0.238/kg and the internal tax $0.904/kg: Third Progress Report of Committee III on Expansion of Trade, GATT Doc L/1162, 27 Apr. 1960, at 12.
82. Art. 132(1) EEC stated as an 'objective'that 'Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to this Treaty'. Art. 95 EEC, prohibiting discriminatory internal taxation within the EEC, did not apply to products from the associates. However, such taxation would have been caught by an interpretation of 'duties'to include 'measures of equivalent effect', as in Le Plat, supra note 35.
83. The Yaoundé Conventions may have softened this obligation to permit even discriminatory internal taxation. These contained clauses under which the parties agreed to 'reftain'from discrimination in internal taxation measures (Art. 14 Yaoundé I; Art. 5(2) Yaoundé II), thus implying that it would have been permitted. In fact, no facially discriminatory taxation was imposed: See e.g., GATT Doc L/2441, supra note 59, at para. 8, where, quoting their non-discriminatory nature, the associates essentially disregarded a question whetherfiscal duties should be notified and (if not necessary for development purposes) reduced in accordance with the Yaoundé Convention.
84. On the question whether such taxes amounted to an'other restrictive regulation of commerce' within the meaning of Art. XXIV GATT see infra note 102.
85. This was also an issue at the multilateral level, and was one of the matters proposed for reform in the Haberler Report: R. Campos, G. Haberler, J. Meade, and J. Tinbergen, Trends in International Trade: A Report by a Panel ofE xperts (19 Oct. 1958). Formal legal declarations on the issue include para. 4(c) of the Declaration on Promotion of the Trade of Less-Developed Countries, Annex to Meeting of Ministers, Conclusions adopted on 30 Nov. 1961, GATT Doc L/I 65 7, 1 Dec. 19 61, and Art. XXXVII(1)(c)(i) of GATT 1947, signed on 8 Feb. 1965 and in force on 27 June 1966. A GATT Programme of Action proposed in 1963, and agreed by all Contracting Parties except the EEC, included an undertaking that 'industrialized countries shall progressively reduce internal charges and revenue duties on products wholly or mainly produced in less developed countries with a view to their elimination by 31 December 1965'.
86. See GATT Contracting Parties, Measures for the Expansion of Trade of Developing Countries as a Means of Furthering their Economic Development - Conclusions Adopted on 21 May 1963 on Item I ofthe Agenda, GATT Doc MIN(63) 7, 22 May 1963, para. I (iv).
87. Yaoundé I, Declaration VIII.
88. See M. Lister, The European Community and the Developing World: The Role of the Lomé Convention (1988), at 52.
89. In 1958 units of account equalled the US dollar. This was worth $3.9bn in 2005 dollars; which compares to €13.5bn under the current arrangements in the Cotonou Agreement: See the conversion table at http://oregonstate.edu/Dept/pol_sci/fac/sahr/cv2005.pdf. Germany and France each contributed $200m to a $581.25m fund of which around 90% werd to French territories, and while the others received the remainder of the funds for their territories, this fell short of their contributions. The others also made a loss: Belgium contributed $70m for a return of $30m; the Netherlands $70m for a return of $3 5m; Italy $40m for a return of $5m and Luxembourg $1.5m for a return of zero: Arts I and 3 and Annexes A and B of the Implementing Convention to the EEC Treaty.
90. The first payment was to be 10%; the final payment 38.5%. Decisions on spending were to be made by the Commission, though with oversight by the Council, acting by specially weighted qualified majority voting. Because of the contribution ratio, Art. 7 IC provided for a different voting system from that in Art. 148.
91. Art. 3 IC.
92. 45% was spent on transport and communications; 10% on water and public building and housing; 9% on health, and 17% on education: Okigbo, supra note 69, at 40, Table 2.
93. $620m of this amount consisted of grants; the remainder comprised repayable loans.
94. Even with the absolute increase the Second EDF fell significantly short of this goal: Pearson and Schmidt, 'Alms for AAMS: A Larger Flow?', 3 JCMS (1964) 74, at 81.
95. Art. 17(c) and (c) and Prot. 5 Yaoundé I. The intention was to apply world prices for coconut, palm oil, cotton, and gum arabic from 1963-1964
96. for rice, sugar, and oil seeds on commencement of the Common Agricultural Policy; for groundnuts by 1964-1965
97. and for coffee by 1967. This did not occur as foreseen, as detailed in Rivkin, supra note 41, at 29-30.
98. Zartman, 'Europe and Africa: Decolonization or Dependency', 54 Foreign Affairs (1976) 325, at 330.
99. For discussion of the negotiations see Zartman, 'The EEC's New Deal with Africa: What the Africans Wanted, What the Europeans Offered, the Meaning of the New Yaounde Convention', 15 Africa Report (1970) 28.
100. From 1958 to 1967 the developing country share of EEC imports declined from 42 % to 38 % and their share of exports from 38 % to just 27%: European Commission, 'The External Trade of the European Community 1958-1967', Current Notes on the European Community, No. 5 (1969), Annex I, reprinted in M. Holland, The European Union and the Third World(2002), at 30.
101. Ibid., at 30-31.
102. A detailed picture comparing trade in tropical products from 1958 to 1963 is set out in Agarwal, supra note 7, ch. 7.
103. By contrast, Aitken and Obutelewicz, 'A Cross-sectional Study of EEC Trade with the Association of African Countries', 58 Review of Economics and Statistics (1976) 425, emphasise the effectiveness of the preferences.
104. In Europe's immediate region, association agreements were concluded at this time with Greece ([1963] 26 JO 293) and Turkey ([1964] 217 JO 3687).
105. Petroleum from the Netherlands Antilles was admitted free of charge but subject to safeguards (customs duties): See Prot. 64/534/EEC [1964] JO 150, 2416.
106. EEC-Morocco association agreement [1969] JO L197/3 and EEC-Tunisia association agreement [1969] JO L198/3.
107. Milward, supra note 65, at 87.
108. Council Declaration of Intent [1963] JO 28 66/63.
109. Pinder, 'The Community and the Developing Countries: Associates and Outsiders', 12 JCMS (1973) 53, at 57. These options were reflected in Art. 58 of the Yaoundé Convention, which provided that, in the event of accession, the advantages of the existing associates would not be affected, and that, in the event of independent association, there would be consultation (though no guarantees were given that the advantages of the existing associates would be maintained).
110. Lagos Agreement, 5 ILM (1966) 828. This agreement was never ratified, due initially to French opposition to ratification during the Biatran war, and subsequently because Nigeria lost interest: Gruhn, 'The Lome Convention: Inching Towards Interdependence?', 30 Int'l Org(1976) 241, at 245.
111. For a full discussion of the agreement see Okigbo, supra note 69, ch. 6.
112. Arusha Agreement, 8 ILM (1968) 741. For discussion see Gorrell Barnes, supra note 16, at 27-32.
113. Association Agreement concerning the accession of Mauritius to the Yaoundé Convention [1973] OJ L288/2.
114. See Akinrinade, 'Associates and Associables: The Failure of Commonwealth Bridge-Building, 1971-3', 27 J Modern African Studies (1989) 177, at 178.
115. Zartman, 'Europe and Africa', supra note 83, at 330, n. 1.
116. Okigbo, supra note 69, at 136 (on Nigeria agreement) and Ghai, 'The Association Agreement between the European Economic Community and the Partner States of the East African Community', 12 JCMS (1973) 78, at 98 (on EAC agreement).
117. In a Declaration, set out in Annex IN, Nigeria promises that '[i]respect to the products contained in the schedule annexed to Protocol No 2, the tariff advantages reserved for the Member States over third countries will not be reduced as long as the Agreement remains in force'.
118. By 1958 the six EEC Member States were all GATT Contracting Parties (Belgium, the Netherlands, Luxembourg and France on its foundation in 1948, Italy in 1950, and Germany in 1951). The role of GATT Working Parties has since 1995 been assumed by the Committee on Regional Trade Agreements. Of around 300 notified agreements, only one (between the Czech and Slovak Republics) has ever positively been approved.
119. Working Party on the Association of Overseas Territories with the European Economic Community, Report to the Intersessional Committee, GATT Doc L/805, 3 Apr. 1958, para. 12,n. 1.
120. The Working Party also criticized the EEC's use of'legal rates' (or 'bound rates') rather than actually applied rates as a basis for determining CET duties on tropical products. They claimed that this 'could only have been either to raise more revenue or to give an even greater margin of preference for the protection of the AOTs' and that 'since revenue could always be safeguarded by introducing internal taxes it was clear to them that the object was to increase the preferential margin'. See ibid., para. 52.
121. The legality of the use of bound rates in such circumstances was undecided until the 1994 WTO Understanding on Art. XXIV GATT, where it was agreed that the applied rates should be used. It has been suggested that the main purpose of these objections was to influence the tariff level of List G items and to inhibit the EEC from applying any non-tariff barriers. See Gorrell Barnes, supra note 16, at 12.
122. K. Kock, International Trade Policy and the GATT 1947 1967 (1969), at 129.
123. See also Coppolaro, supra note 13, at 26-33.
124. GATT Doc L/2441, supra note 59, (on Yaoundé I) and Report of the Working Party on Convention of Association between the European Economic Community and the African and Malagasy States, GATT Doc L/3465, 20 Nov. 1 70 (on Yaounde 11).
125. See GATT Doc L/3465, supra note 101, para. 7 (and EEC reply at para. 8). The same member considered that it would be more appropriate for trade relations between the EEC and the associates to take place under the newly agreed GSP system (ibid., at para. 7).
126. This is the primary theme of the 'Prebisch Report', Towards a New Trade Policy for Development: Report by the Secretary General of the Conference on Trade and Development (1964).
127. Ibid., at 18.
128. See Expansion of International Trade, Decision of 17 Nov. 1958, GATT Doc L/939, 27 Nov. 1958.
129. See also Vingerhoets, 'The Kennedy Round and the Developing Countries', in F.A.M. Alting von Geusau, Economic Relations after the Kennedy Round (1969), at 48, 49.
130. GATT Contracting Parties, Declaration on Promotion of Trade of Less-Developed Countries, GATT Doc L/1657, Annex, 1 Dec. 1961, at 5.
131. See Meeting of Ministers, Measures for the Expansion of Trade of Developin Countries as a Means of Furthering their Economic Development, Conclusions Adopted on 21 May 1963 on Item 1 of the Agenda, GATT Doc MIN (63)7, 22 May 1963.
132. See also the Resolution setting up an Action Committee to assist in the implementation of the Action Plan, GATT Doc MIN (63)8, 22 May 1963.
133. The US was authorized under the Trade Expansion Act of 1962 to remove all duties on tropical products, but on condition that the EEC took adequate action. As this never happened, the US offer could not, by law, be realized: See Vingerhoets, supra note 105, at 56-57.
134. GATT Doc MIN (63)7, supra note 107.
135. Vingerhoets, supra note 105, at 51, describes the EEC reaction as 'illogical'.
136. S. Weintraub, Trade Preferences for Less Developed Countries: An Analysis of US Policy (1966), at 131.
137. In his inaugural report, the UNCTAD Secretary-General, RaidPrebisch, argued in favour ofsuch a system, which he considered temporary, and described as 'the logical extension of the infant industry argument': Prebisch Report, supra note 103, at 35.
138. The Community's rationale is set out in European Commission, 'The EEC and Generalized Preferences in Favour of Semi-Finished and Manufactured Products Imported from the Developing Countries', Information Memo, Brussels, June 1971 (PP/500/71-A), at 5-7.
139. GATT Doc MIN (63)7, supra note 10 7, para. 24.
140. Prebisch Report, supra note 103, at 61.
141. The Plan is outlined in the Statement by Mr Maurice Brasseur, in Proceedings of the United Nations Conference on Trade and Developrnent Policy Statements (1964), ii, 108-113.
142. See Statement by Mr Jean Rey, Representative of the EEC, on 6 Apr. 1964, in ibid., at 445.
143. Statement by Brasseur, supra note 114, at 111.
144. Hubs, 'Trade Preferences for Developing Countries: Options for Ordering International Economic and Political Relations', 20 Stanford L Rev (1968) 1150, at 1175.
145. Ibid., 1172
146. Scott, 'The United States Response to Common Market Trade Preferences and the Legality of the Import Surcharge', 39 U Chicago L Rev (1971) 177, at 195. The Kennedy Round opened on 4 May 1964 and concluded with a Final Act signed on 30 June 1967.
147. Proceedings of the United Nations Conference on Trade and Development Final Act and Report (19 64), ii, Annex A.I.1 (General and Special Principles), at 20 n. 8. The principles to emerge from this meeting were: Market access opportunities for developing countries (in the form of trade preferences and reductions in internal taxation), encouragement for commodity stabilization agreements, compensatory financing, and support for regional arrangements.
148. For a summary see Metzger, 'Developments in the Law and Institutions of International Economic Relations: UNCTAD', 61 AJIL (1967) 756, at 760.
149. In total 78 countries voted in favour, 11 voted against (all developed except for South Africa), and 23 countries abstained (all developed except Vietnam, Rwanda, Turkey, Uganda and Venezuela): See UNCTAD Final Act, supra note 119. Almost allthe associated countries voted in favour of Principle 8, an approach also reflected in the Yaoundé II Convention, Protocol 4 of which provides that 'the provisions of the Convention, and in particular Article 3 thereof, do not conflict with the establishment of a general system of preferences and do not prevent the Associated States from participating therein'.
150. Part IV GATT was signed on 8 Feb. 1965 and entered into force on 27 June 1966. On the principle of non-reciprocity see Art. XXXVI:8 and Note Ad Art. XXVI:8 GATT, and also GATT Doc, COM.TD/W/37, at 9.
151. Trade Negotiations Committee, Resolution adopted on 6 May 1964, TN.64/ 27, 11 May 1964.
152. UNCTAD, The Kennedy Round Estimated Effects on Tariff Barriers, Report by the Secretary-General, UN Doc. TD/6/Rev. 1 (1968), at 17, Table 5. Even on industrial products the reduction was 28% for products of interest to developing countries compared to 38% overall.
153. Hubs, supra note 117, at 1177-1183
154. Scott, supra note 118, at 195-200
155. Graham, 'The US Generalized System of Preferences for Developing Countries: International Innovation and the Art of the Possible', 72 AJIL (1978) 513, at 516-517.
156. UNCTAD Resolution 21(II). On the initial attempt to reach a common scheme of preferences see Scott, supra note 118, at 195-200. This left a relic in the now-confusing terminology of a 'generalized system' of preferences.
157. UNCTAD, Agreed Conclusions, UNCTAD Doc TD/B/AC.5/36 endorsed (in fact, 'noted') in Generalized System of Preferences, Decision 75(IV), adopted by the Trade and Development Board, UNCTAD Doc TD/B/330, Annex I, 12-13 Oct. 1970.
158. Generalized System of Preferences, Decision of 25 June 1971, GATT Doc L/ 3545.
159. Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries ('Enabling Clause'), Decision of 28 Nov. 1979, GATT Doc L/4903. The Enabling Clause now forms part of the GATT 1994.
160. Preferential Tariff Treatment for Least-Developed Countries, Decision on Waiver, adopted on 15 June 1999, WT/L/304.
161. The participation of these countries in the association was a direct result of UK accession to the EEC, and set out in Art. 1 of Prot. 22 ofthe UK Act of Accession (signed 22 Jan. 1972) [1972] OJ L73/177. The countries concerned were in Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Nigeria, Sierra Leone, Swaziland, Tanzania, Uganda, and Zambia; in the Caribbean: Bahamas, Barbados, Grenada, Guyana, Jamaica, and Trinidad and Tobago; and in the Pacific: Fiji, Tonga, and Western Samoa.
162. Ethiopia, Liberia, Sudan, Guinea, Equatorial Guinea, and Guinea-Bissau.
163. Gruhn, supra note 91, at 251.
164. Partly this was due to the practical fact that the proposed US GSP scheme excluded any developing country granting reciprocal preferences to developed countries: Graham, supra note 124, at 522 n. 33
165. Pinder, supra note 90, at 66. The rule still exists in 19 USC 2462(b)(2)(C).
166. Gruhn, supra note 91, at 253.
167. Lomé I Convention [1976] OJ L25/1, signed on 28 Feb. 1975, in force on 1 Apr. 1976. This was followed by the formal establishment of the 'ACP Group'in the Georgetown Agreement of 6 June 1975: Available now at www.acpsec.org/as ACP/27/005/00, as amended 2 7-28 Nov. 2003. The ACP Group negotiated as a block for the later incarnations of the Lomé Convention. Cuba joined the ACP Group in 2000 but is not party to the Cotonou Agreement.
168. Lomé II Convention [1980] OJ L347/1; Lomé III Convention [1986] OJ L86/3; Lomé IV Convention [1989] OJ L229/1, amended [1998] OJ L156/3.
169. Cotonou Agreement [2000] OJ L317/3, amended [2005] OJ L 287/1. In 2003, East Timor acceded to the Cotonou Agreement, bringing its total membership to 79.
170. Arts 7 Lomé 1; 9 Lomé II; 136 Lomé III; 174 Lomé IV; and Annex V, Art. 5 Cotonou.
171. CAP products are (a) arable: Cereals, sweet lupins, peas, field beans, animal feedstuffs, cotton, hops, sugar, fibre flax and hemp, olive oil, rice, dried fodder, flowers and live plants, tobacco, seed, honey, fruit and vegetables, seed flax, oilseed, silkworms, potatoes, wine; and (b) meat and dairy: Beef and veal, milk and milk products, pig meat, poultry meat and eggs, sheep meat, and goat meat. The coverage of exceptions is somewhat broader: E.g., lychee juice is excluded on the basis that it could compete with orange juice: http://agritrade.cta.int/market/ executive_brief.htm.
172. Arts 2-3 Lomé I; 2-3 Lomé II; 130-131 Lomé III; 168-169 Lomée IV; Annex V, Arts 1-2 Cotonou. For a summary of existing measures see the Annex to Reg. 2286/2002 [2002] OJ L348/5, as amended. Badiane, 'The Common Agricultural Policy and African Countries', in I.W. Zartman (ed.), Europe and Africa: The New Phase (1993), at 90-94, considers that the CAP is detrimental to ACP producers both because of its protective effect and because the resulting surplus production destabilizes world markets.
173. Art. 8(1) Annex V Cotonou. The procedure for taking safeguards is set out in Reg. 2285/2002 [2002] OJ L348/2.
174. The last time a safeguard measure was imposed was Commission Dec. 236/93 authorizing the French Republic to apply safeguard measures to the importation of bananas originating in the African, Caribbean and Pacific (ACP) States [1993] OJ L105/37.
175. Prot. 6 Lomé I; Prot. 4 Lomé II; Prot. 4 Lomé III; Prot. 5 Lomé IV.
176. The European Commission regularly authorized the UK to apply safeguard measures, and Italy to take surveillance measures, under Art. 115 ofthe EEC Treaty. See e.g., Commission Dec. (80/949/EEC) of 25 Sept. 1980 authorizing the UK to take interim protective measures with regard to fresh bananas originating in certain third countries [1980] OJ L267/35 and Commission Dec. (81/85/EEC) of 29 Jan. 1981 authorizing the Italian Republic to take intra-Community surveillance measures in respect of imports of bananas originating in certain third countries andput into free circulation in the other Member States [1981] OJ L58/32.
177. The Commonwealth Sugar Agreement was concluded on 21 Dec. 1951 between the UK, the Queensland Sugar Board, and sugar industry associations in British West Indies, Fiji, Mauritius, and South Africa: The agreement was not published but noted in Keesing's Contemporary Archives 11944. It was initially for 8 years and renewed annually thereafter.
178. Prot. 3 Lomé I; Prot. 7 Lomée II; Prot. 7 Lomé III; Prot. 8 Lomé IV. The corollary condition was that an ACP country that tailed to meet its quota would have this quota reduced. India benefits similarly under the Agreement between the European Economic Community and the Republic ofIndia on cane sugar [1975] OJ L190/36.
179. From 1971 to 2001 the average EU sugar price was $0.4 5/kg compared to the world price of $0.24/kg: R. Grynberg and S. Silva, Preference-Dependent Economies and Multilateral Liberalization (2004), Table 5,
180. citing C. Milner et al., The Impact of ACP Countries of the Reduction by the EU of Export Subsidies on Sugar, Report prepared for the Commonwealth Secretariat, London (2003).
181. Prot. 7 Lomé I; Prot. 5 Lomé II; Prot. 5 Lomé III; Prot. 6 Lomé IV.
182. Prot. 7 Lomé IV.
183. GATT Panel Report, EC-Bananas II, DS38/R, circulated 11 Feb. 1994, unadopted.
184. The Note Ad Art. XXXVI:8 GATT (the provision in Part IV setting out the principle of non-reciprocity) provides that'[t]his paragraph would apply in the event of action under Section A of Article XVIII, Article XXVIII, Article XXVHI bis, Article XXXIII, or any other procedure under this Agreement' (emphasis added). The panel's reasoning as to why this last phrase does not apply to negotiations leading to an Art. XXIV-consistent regional trade agreement is not entirely convincing, even if it now has the status of conventional wisdom. It may also be relevant that the equivalent Art. V of the WTO General Agreement on Trade in Services (GATS) specifically allows for 'asymmetry' in regional integration agreements between developed and developing countries.
185. The Fourth ACP-EEC Convention of Lomé, Decision of 9 Dec. 1994, GATT Doc L/7604, 19 Dec. 1994. The WTO Appellate Body held that certain non-tariff aspects of the EC's discriminatory treatment of bananas was not 'required' under the Lomé Convention and was therefore not covered by the waiver. See WTO Appellate Body Report, EC-Bananas III, WT/DS2 7/AB/R, adopted 25 Sept. 1997, and there is current litigation on the EC's implementation of this ruling: See infra note 162.
186. ACP EC Partnership Agreement, Decision of 14 Nov. 2001, WTO Doc WT/ MIN(01)/15, 14 Nov. 2001. A separate waiver (WTO Doc WT/MIN(01)/16) protected the EC's quotas on bananas until 31 Dec. 2005. A request for an extension of this waiver (G/C/W/529, 11 Oct. 2005) was not approved. See also infra note 162.
187. Prot. 4 and Declaration XXII Cotonou. However, countries benefiting from the beef protocol are not heavily dependent on it. Beef makes up only around 1% of total Botswanan and Namibian exports to the EU; the bulk is comprised of diamonds: R. Sandrey and T. Fundira, Southern Africa and the Trading Relationship with the European Union, Tralac Trade Brief No 1/2007, Jan. 2007.
188. See also Declaration XXII Cotonou.
189. Annex V Prot. 3 Cotonou.
190. This was not helpedby the WTO ruling that EU exports of surplus sugar onto worldmarkets constitute an illegal export subsidy: See WTO Appellate Body Report, EC-Export Subsidies on Sugar, WT/DS265/AB/ R, adopted on 19 May 2005. The amount of sugar at issue in the dispute approximated the sugar imported under the Sugar Protocol and the India Sugar Cane Agreement.
191. Reg. 266/2006 establishing accompanying measures for Sugar Protocol countries affected by the reform of the EU sugar regime [2006] OJ L50/1 provides for the allocation of €40m to Sugar Protocol countries for 2006. The welfare losses are described in Grynberg and Silva, supra note 146.
192. See infra note 189.
193. WTO Trade Policy Review, WT/TPR/S/177, Table A.IV.2 (2006 figures).
194. Ibid.
195. Ibid.
196. Reg. 1964/2005 on the tariff rates for bananas [2005] OJ 316/1. For challenges see EC-Bananas (Article 21.5 - Ecuador), Request for the Establishment of a Panel, WT/DS2 7/80, 26 Feb. 2007
197. EC- Bananas, Request for Consultations by Colombia, WT/DS3 61/1, 26 Mar. 2007.
198. Mauritius, St Lucia, Belize, St Kitts and Nevis, Guyana, and Fiji: Alexandraki and Lankes, 'The Impact of Preference Erosion on Middle-Income Developing Countries', IMF Working Paper WP/04/169, Sept. 2004. The data include preferences from the Quad countries (US, EU, Canada, and Japan) but for these countries the relevant preferences are exclusively from the EU (though the figures predate reforms to the EU's sugar and bananas regimes).
199. Bouět et al., 'Is Erosion of Tariff Preferences a Serious Concern?', in K. Anderson and W. Martin, Agricultural Trade Reform and the Doha Developtnent Agenda (2005), at 188, affirms the results in Alexandraki and Lankes, supra note 163, but also emphasizes the value of preferences on other products to a number of African and Caribbean countries. Relatively low figures (under 10%) are given in Candau and Jean, 'What Are EU Trade Preferences Worth for Sub-Saharan Africa and Other Developing Countries?', Centre d'Etudes Prospectives et d'Informations Internationales, Working Paper 2005-19, May 2006, at 25, Table 7. For dollar figures see UNCTAD, Erosion of Preferences for the Least Developed Countries: Assessment of Effects and Mitigating Options, TD/B/52/4,4 Aug. 2005 and Hoekman et al., 'Preference Erosion: The Terms of the Debate', in R. Newfarmer (ed.), Trade, Doha, and Development: A Window into the Issues (2005).
200. The ACP share of world canned tuna production increased from 5% to 12% from 1976 to 2003: See Oceanic Development, Poseidon, and Megapesca, The European Tuna Sector: Economic Situation, Prospects and Analysis of the Impact of the Liberalisation of Trade, Final Report, FPA12/TUN/05 (2005), available at: http://ec.europa.eu/fisheries/publications/studies/tuna_2005_en.pdf, at 114,
201. cited in L. Campling, Economic Partnership Agreements (EPAs) and Pacific Fisheries, Revised Paper prepared for the joint Pacific ACP Trade and Fisheries Officials and Ministers Meetings, Vanuatu, 13-14 Nov. 2006 (on file with author), at 1 n. 3; see also at 5, on the importance of preferences to the canning industry.
202. The main exDorts from the ACP are as follows: Southern Africa: diamonds (42%), mineral oil (17%), aluminium (13%), fish (8%), gold (6%); West Africa: Mineral oil (45%), cocoa (21%), fish (5%), timber (4%), iron/ aluminium (4%); Central Aftica: Mineral oil (47%), timber (23%), bananas (5%), cocoa (4%); East South Africa: Textiles (15%), fish (11%), diamonds (9%), sugar (8%), cut flowers (7%); Caribbean region: Corundum (10%), ethanol (10%), sugar (8%); Pacificregion: Palm oil (36%), sugar (16%), copper ore (13%), coffee (7%), fish (5%). See A. Valqui and B. Hofmann, Trade for Development: ACP/EU Economic Partnership Agreements, German Federal Ministry for Economic Cooperation and Development, Feb. 2007, available at: www.bmz.de/en/service/infothek/ fach/materialien/Materialie175.pdf,at 4. Ships and aircraft are customarily included in trade statistics, but as these figures refer to transfers of ownership and not origin they are excluded here. A more detailed breakdown of EU-ACP trade is contained in European Commission, ACP- Trade Statistics, available at: http://trade.ec.europa.eu/ doclib/html/113468.htm.
203. The 1976 figures are from M. Minchin, Preference Utilization and Tariff Reduction in European Union Imports from Africa, Caribbean, and Pacific Countries, World Bank Policy Research Working Paper 3688, Aug. 2005, at 3, who cites EU figures. The 2005 figures are calculated from total import statistics in European Commission, Preferential Trade in the EU - Making Trade Policy Work For Developtnent: Report on EU Market Access for Developing Countries and the Potential for Preference Erosion 2003 2005, Report from DG Trade ofthe European Commission to the European Parliament, May 2006, Table 2, available at: trade. ec.europa.eu/doclib/docs/2006/may/tradoc_128863.pdf.
204. There are also other reasons for the failure to diversify: See Osakwe, 'Foreign Aid, Resources and Export Diversification in Africa: A New Test of Existing Theories', MPRA Paper 2228, Mar. 2007, available at: http://mpra.ub.uni-muenchen.de/2228. See also UN Economic Commission for Africa, Economic Report on Africa 2007: Accelerating Africa's Development through Diversification (2007).
205. In Lomé II, a similar system for minerals (Sysmin) was established and for a short time in the late 1980s it was accompanied by an equivalent scheme for non-ACP least developed countries (Compex).
206. For a summary with references see UNCTAD, Economic Development in Africa: Trade Performance and Commodity Dependence (2003), at 35-37.
207. Council Declaration on the situation in Uganda, adopted 21 June 1977, Bull EC 6-1977, para. 2.2.59.
208. A fuller account is given in L. Bartels, Human Rights Conditionality in the EU's International Agreements (2005).
209. Art. 5 Lomé IV.
210. Commission Communication on the Inclusion of Respect for Democratic Principles and Human Rights in Agreements between the Community and Third Countries, COM(95)216 and Commission Communication on the European Union and the External Dimension of Human Rights Policy: From Rome to Maastricht and Beyond, COM(95)567.
211. Revised Art. 5(1)(3) and new Art. 366a Lomé IV, introduced in the Agreement Amending the Fourth ACP-EC Convention of Lomé signed in Mauritius on 4 Nov. 1995 [1998] OJ L156/3.
212. Arts 9 and 96 Cotonou; see also Art. 8 on political dialogue.
213. Agreement amending the Cotonou Agreement [2005] OJ L209/27, amending Arts 8, 9, and 96 and introducing a new Annex VII.
214. Dec. 148/2002 concluding consultations with Zimbabwe under Art. 96 of the ACP EC Partnership Agreement [2002] OJ L50/64, inter alia suspending Art. 12 of Annex II to the Cotonou Agreement, renewed [2007] OJL53/23.
215. Reg. 310/2002 concerning certain restrictive measures in respect of Zimbabwe [2002] OJ L50/4, implementing Common Position 145/2002 [2002] OJ L50/1.
216. Regs 1308/71 to 1314/71 [1971] OJ L142. Technically the first country to offer a GSP was the Soviet Union in 1965, and the first GATT Contracting Party was Australia, authorized by specific waiver in a Decision of 28 Mar. 1966, GATT Doc, L/2627, 4 Apr. 1966. The US followed in 1976, after a hiccup in its trade policy by the sudden imposition in 1971 of a 10% surcharge on all imports for 4 months.
217. Reg. 980/2005 applying a scheme of generalised tariff preferences [2005] OJ L169/1 (the 'GSP Reg.'). Like its predecessors this regulation is based solely on Art. 133 EC (common commercial policy). In Case 45/86, Commission v. Council (Tariff Preferences) [1987] ECR 1493, the ECJ held that the common commercial policy authorized measures with a development dimension.
218. However, this preceded the enactment of Art. 179 EC, which specifically authorizes measures with the objective of fostering, inter alia, 'the smooth and gradual integration of the developing countries into the world economy'. It would now seem appropriate for a GSP Reg. to have at least a dual legal basis: On which see Case C-94/03, Commission v. Council (Rotterdam Convention) [2006] ECR 1-0001.
219. Art. 3(l) GSP Reg., supra note 181. High income is defined in terms of World Bank classification for the past 3 years; and diversification is defined as when imports of its five largest GSP covered sections represent less than 75% in value of all its GSP imports to the Community.
220. Art. 3 (2) of ibid. No countries have to date been removed from the programme, but this may be expected to follow the consolidation of GSP benefits into the EU-Chile association agreement: See Dec. 2/2006 of the EU-Chile Association Council [2006] OJ L322/5.
221. In WTO Appellate Body Report, EC-Tariff Preferences, WT/DS246/AB/ R, adopted on 20 Apr. 2004, para. 174 n. 355, the Appellate Body expressly refused to rule on the WTO legality of a priori exclusions.
222. The panel in EC-Tariff Preferences, WT/DS246/R, adopted as modified by the Appellate Body Report on 20 Apr. 2004, para. 7.113, noted that certain a priori exclusions, targeted at competitiveness in the market place, were permitted in the Agreed Conclusions and considered that they were therefore WTO legal.
223. Industrial products comprised 6.6% of EU imports from developing countries in 1968: European Commission, 'The EEC and Generalized Preferences In Favour of Semi-Finished and Manufactured Products imported from the Developing Countries', Information Memo, June 19 71, at 6.
224. A. Borrmann et al., I The EC's Generalized System of Preferences (1981), at 31-32.
225. Borrmann, supra note 186, at 82-117.
226. The GSP Regs since 1994 are Reg. 3281/94 (industrial products) [1994] OJ L348/1; Reg. 1256/96 (agricultural products) [1996] OJ L160/1; Reg. 2820/ 98 [1998] OJ L357/1; Reg. 2501/2001 [2001] OJ L346/1 and the present Reg., supra note 181, valid until 31 Dec. 2008.
227. In 2007 the EU has a total of 9,720 tariff lines of which 2,379 are duty free (2,374 bound within the WTO at 0% and 5 suspended): Email from European Commission, 16 Apr. 2007. The GSP applies to around 6,400 tariff lines of which around 2,500 are non-sensitive and 3,900 sensitive: Email from European Commission, 20 Apr. 2007.
228. GSP statistics for 2006 provided by European Commission, on file with author.
229. Art. 7 GSP Reg., supra note 181. There are some variations on textiles and alcohol. Very low 'nuisance' tariffs (of less than 1% ad valorem or €2 per individual € amount) are also suspended: ibid., Art. 15.
230. These proportions are the same for eligible and actual GSP imports. For GSP statistics see supra note 190.
231. Art. 14 GSP Reg., supra note 181. This is defined as when the average value of the section is more than 15% of the total of GSP imports into the EU (12.5% for textiles and clothing); but this does not apply when the country is so vulnerable that the section comprises more than 50% of the country's exports to the EU.
232. For GSP statistics see supra note 190.
233. Information available at: http://ec.europa.eu/trade/issues/global/gsp/ pr2ll205_en.htm.
234. See supra note 184.
235. The first instances were Arts 7 and 8 of Reg. 3281/94 [1994] OJ L348/1 and Arts 7 and 8 of Reg. 1256/96 [1996] OJ L160/1, in each case to come into effect as of 1 Jan. 1998.
236. WTO Appellate Body Report, EC-Tariff Preferences, supra note 184.
237. For discussion see Bartels, 'The WTO Ruling on EC-Tariff Preferences to Developing Countries and its Implications for Conditionality in GSP Programs', in T. Cottier et al. (eds), Human Rights and International Trade (2005), at 463-487
238. and Charnovitz et al, 'The Appellate Body's GSP Decision: Internet Roundtable', 3 World Trade Rev (2004) 239.
239. EC-Tariff Preferences, supra note 184, paras 181-187.
240. Ibid., at para. 153.
241. Ibid., at para. 165.
242. Ibid.
243. Ad valorem and specific duties (unless also subject to ad valorem duties) are suspended, except for some sugar confectionery: Art. 8 GSP Reg., supra note 181.
244. This does not therefore cover the 13% of non-GSP covered dutiable products.
245. Art. 10 GSP Reg., supra note 181.
246. Ibid., Art. 9. The vulnerability also repeats the high-income and export diversification criteria applicable to the general arrangement. In practice, this criterion excludes numerous developing countries: In Latin America (Argentina and Brazil), South Asia (Bangladesh, India, Pakistan, and Sri Lanka), South East Asia (China, Indonesia, Malaysia, Philippines, Thailand, and Vietnam), the Mediterranean and the Middle East (Saudi Arabia and the United Arab Emirates), Eastern Europe and Central Asia (Russia, Ukraine, and Kazakhstan), and South Africa. This is not counting the countries with EU free trade agreements. For GSP statistics see supra note 190.
247. See also C. Stevens and J. Kerman, GSP Reform: A Longer-Term Strategy (with special reference to the ACP) (2005), p. vi
248. C. Stevens, J. Kennan, and M. Meyn, The Costs to the ACP of Exporting to the EU under the GSP: Final Report (2007), at 14.
249. Annex III to the GSP Reg., supra note 181, lists these as'[c]ore human and labour rights UN/ILO conventions' and 'Conventions related to the environment and governance principles'.
250. Commission Dec. 924/2005 of 21 Dec. 2005 [2005] OJ L337/50. The list comprises Bolivia, Colombia, Ecuador, Peru, and Venezuela (the Andean Community), as well as Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. The missing 'drugs arrangement' country is Pakistan, whose late addition to the former'closed list' sparked India's complaint in EC Tariff Preferences. According to its Art. 11(3), this Dec. was supposed to have been published by 15 Dec. 2005.
251. Art 16(2) GSP Reg., supra note 181.
252. See Bartels, 'The WTO-Legality of the EU's GSP+ Arrangement', 10 J Int'l Economic L (2007, forthcoming).
253. In practice, this criterion excludes three countries (India, Pakistan, and Vietnam) classified by the World Bank as 'low income' countries: Stevens and Kennan, supra note 206.
254. Decision on Differential and More Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries (Enabling Clause), Decision of 28 Nov. 1979, GATT Doc L/490, available at: www.wto.org/english/ docs_e/legal_e/enabling_e.doc, at para. 2 (d).
255. Para. 2 (d) of the 1979 WTO Enabling Clause permits a degree of preferential treatment for LDCs that is not extended to other developing countries.
256. A brief early history is given in Peers, 'Reform of the European Community's Generalized System of Preferences: A Missed Opportunity', 29 J World Trade (1995) 79, at 83.
257. Reg. 602/98 [1998] OJ L80/1.
258. Reg 416/2001[2001] OJ L60/43.
259. Art 30(2) GSP Reg., supra note 181.
260. Ibid., Annex I, which lists the countries eligible for least developed country preferences, repeats the existing list of least developed countries determined by the UN Committee on Development Policy (CDP), available at: www.un.org/special-rep/ohrlls/ldc/list.htm.
261. Ibid., Art. 12(7), provides for graduation of former LDCs, but there is no mechanism for adding new LDCs.
262. Ibid., Art. 12.
263. Doha Ministerial Declaration, WT/MIN(01)/DEC/1, 20 Nov. 2001, para. 42.
264. Hong Kong Ministerial Declaration, WT/MIN(05)/DEC, 22 Dec. 2005, Annex F, para. 36.
265. UNCTAD, supra note 164, at para. 27.
266. E.g., Art. 31 of Reg. 3321/80 [1980] OL L354/82.
267. Recital 4 to Reg. 3322/80 [1980] OJ L354/114.
268. Recital 4 to Reg. 3833/90 [1990] OJ L370/86.
269. See supra note 184. But note UNCTAD Resolution 96(IV), which called for an improvement of GSP preferences 'taking into account the relevant interests of those developing countries enjoying special advantages, as well as the need to find ways and means of protecting their interests': UNCTAD, TD/B/C.5/49, at 3.
270. Art. 25 GSP Reg., supra note 181.
271. Ibid., Art. 21(1).
272. Ibid., Art. 21(8). All that is required is a simple increase in volume of 20% per year or (for clothing) the amount exceeds 12.5% of the total EU imports in 12 months (with some exceptions).
273. Art. 22 GSP Reg., supra note 181.
274. This provoked a strong objection by Sweden on the ground that it reduces the potential benefits of the EBA initiative to least developed countries. See Statement by Sweden, Statements on a Council Reg. applying a scheme of generalised tariff preferences for the period from 1 Jan. 2002 to 31 Dec. 2004 [2001] L346/60.
275. Reg. 1291/94 [1994] OJ L141/9
276. extended by Reg. 3281/94 [1994] OJ L348/1.
277. Ibid., Art. 9.
278. Art. 17 GSP Reg., supra note 181.
279. Ibid., Art. 16(1).
280. Reg. 1933/2006 [2006] OJ L405/35
281. corrected by [2007] OJ L29/14
282. Reg. 552/97 [1997] OJ L85/8
283. continued by Art. 29 GSP Reg., supra note 181.
284. See above at 742.
285. These are frequently also called free trade agreements or (particularly by economists) preferential trade agreements. This article follows the WTO practice of calling these 'regional trade agreements', even though they are not necessarily regional.
286. EC agreements with Morocco [1969] JO L197/3, Tunisia [1969] JO L198/3, Spain [1970] JO L182/2, and Israel [1970] JO L183/2. See also supra note 88.
287. EC agreements with Israel [1975] OJ L136/3, Algeria [1978] OJ L263/2, Morocco [1978] OJ L264/2, Tunisia [1978] OJ L265/2, Egypt [1978] OJ L266/ 2, Lebanon [1978] OJ L267/2, Jordan [1978] OJ L268/2, and Syria [1978] OJ L269/2.
288. GATT Working Party Reports on agreements with Israel, GATT Doc L/4365, 23 June 1976; Tunisia, GATT Doc L/4558, Algeria, GATT Doc L/4559, Morocco, GATT Doc L/4560, all 31 Oct. 1977; and Egypt, GATT Doc L/4660, Syria, GATT Doc L/4661, Jordan, GATT Doc L/4662, and Lebanon, GATT Doc L/ 4663, all 5 May 1978.
289. See supra note 149.
290. There are Euro-Mediterranean association agreements with Algeria [2005] OJ L265/2; Egypt [2004] OJ L304/39; Israel [2000] OJ L147/3; Jordan [2002] OJ L129/3; Lebanon [2006] OJ L143/2; Morocco [2000] OJ L70/2; an Interim Agreement with the Palestinian Authority [1997] OJ L187/3; Syria (notyet signed), and Tunisia [1998] OJ L97/2.
291. EC Mexico association agreement [2000] OJ L276/45.
292. EC-South Africa trade, development and cooperation agreement (TDCA) [1999] OJ L311/3.
293. EC-Chile association agreement [2002] OJ L352/3.
294. Negotiation directives are in place for agreements with Mercosur (1999), the Gulf Cooperation Council (GCC) (2001), and ASEAN, Korea, and India (all 2007). The EU and both Central America and the Andean Community have declared their intention to negotiate further trade agreements. For current information see the DG Trade website at http://ec.europa.eu/ trade/.
295. In addition, the EU has concluded numerous co-operation agreements with developing countries since the 1990s. These have little impact on the trade obligations of the various parties. The EEC India Cooperation Agreement was discussed in Case C-268/94, Portugal v. Council [1996] ECR I-6177.
296. WT/REG109/6, 24 Mar. 2006, Tables in Annex.
297. See the contributions, especially in Part 2, in L. Bartels and F. Ortino (eds), Regional Trade Agreements and the WTO Legal System (2006).
298. See Bartels, generally, supra note 172.
299. Ibid., at 37.
300. See supra note 190.
301. Ibid. Utilization was practically zero for garments made in Cambodia in 2001 and 2002.
302. See UNCTAD, Trade Preferences for LDCs: An Early Assessment of Benefits and Possible Improvements, UNCTAD/ITCD/TSB/2003/8 (2003), Pt. II.
303. Manchin, 'Preference Utilisation and Tariff Reduction in EU Imports from ACP Countries', 29 World Economy (2006) 1243, at 1255.
304. The WTO regulates non-preferential rules of origin, but imposes only minimal transparency and due process requirements on preferential rules of origin: See WTO Agreement on Rules of Origin, available at: www.wto.org/english/docs_e/legal_e/22-roo.doc, Annex II.
305. The EU's rules of origin are available for any given product at: http://exporthelp.europa.eu.
306. For a helpful summary of the rules of origin in the Community's different preferential arrangements (including the GSP) see Naumann, 'Comparing EU Free Trade Agreements - Rules of Origin', ECDPM InBrief 61 (2006), available at: www.ecdpm.org/inbrief6i.
307. Art. 5 GSP Reg., supra note 181, refers to the rules set out in Commission Reg. 2454/93 [1993] OJ L253/1.
308. Art. 3(2) of Prot. 1 Cotonou
309. and see also the derogations available under Art. 3 (3). Nationals of the Overseas Countries and Territories are also included.
310. Art. 68(2) Reg. 2454, supra note 259.
311. Art. 3(2)(d) of Prot. 1 Cotonou.
312. Art. 68(2) Reg. 2454, supra note 259.
313. Art. 4(2) of Prot. 1 Cotonou.
314. Art. 71(1) GSP Reg., supra note 181.
315. As a rule, the country of origin is the last country of processing, provided that this processing has the highest value added.
316. A convenient list, with references, is available at: http://ec.europa.eu/ taxation_customs/customs/customs_duties/rules_origin/preferential/ article_779_en.
317. On the Pan-European Cumulation System see European Commission, A User's Handbook to the Rules of Preferential Origin used in Trade between the European Community, other European Countries and the Countries Participating to the Euro-Mediterranean Partnership, available at: http://ec.europa.eu/taxation_customs/resources/documents/ handbook_en.pdf. The system is effected by the adoption of new protocols to the relevant agreements. For their dates of entry into force see Commission Notice [2006] OJ C220/3.
318. Art. 67(4) Reg. 2454/93, supra note 259, as amended by Reg. 3254/94 [1994] OJ L346/1.
319. These are the Association of Southeast Asian Nations (ASEAN), the Central American Common Market (Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama), the Andean Group (Bolivia, Colombia, Ecuador, Peru, and Venezuela), and the South Asian Association for Regional Cooperation (Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka): Art. 72 GSP Reg., supra note 181.
320. See Commission Regs 1806-1808/2006 [2006] OJ L343/69-74. Bangladesh benefited from a similar derogation in 1997 under Commission Reg. 2260/ 97 [1997] OJ L311/8.
321. Commission Green Paper on the Future of Rules of Origin in Preferential Trade Arrangements, COM(2003)787, 18 Dec. 2003
322. Commission Communication on the Rules of Origin in Preferential Trade Arrangements: Orientations for the Future, COM(2005)100, 16 Mar. 2005;
323. and Commission Communication on Developing Countries, International Trade and Sustainable Development: The Function of the Community's Generalised System of Preferences (GSP) for the Ten-Year Period from 2006 to 2015, COM(2004)461, 7 July 2004, pt. 6.6. Art. 37(7) of the Cotonou Agreement also foresees a revision of rules of origin to improve market access in the Economic Partnership Agreements.
324. Green Paper, supra note 272, 9.
325. Ibid.
326. In a leaked memorandum to European Commission Delegations, the Director-General of DG Trade stated that, while no ACP country had yet requested an alternative, 'we should also say that EPAs are our best alternative... and any other options will be less valuable for trade and development'. The memorandum also referred to alternatives as 'in reality, impractical'. See Carl, 'Note for the Attention of Delegations in ACP Countries: Recent UK statements on EPAs', Brussels, Trade/MPC D(2005) 3910, 11 Apr. 2005, available at: www.epawatch.net/documents/ doc287_1.doc.
327. 17 H.-B. Solignac Lecomte, Effectiveness of Developing Country Participation in ACP-EU Negotiations, Working Paper (2001), at 14.
328. In the absence of publicly available draft agreements, it is not possible to comment on the agreements in detail; rather, what follows is a brief summary of the 'known unknowns'. These relate to the inclusion of obligations on services, investment, trade facilitation, and government procurement, the inclusion of a human rights clause, the precise scope of 'trade for aid' and - significantly - rules of origin. For a summary of the different negotiating positions see ACP-EC EPA Negotiations: Joint Report on the All-ACP-EC Phase of EPA Negotiations ACP/00/118/03, ACP-EC/NG/NP/43, Rev. 1, Brussels, 2 Oct. 2003
329. and subsequent 'roadmaps' available at: http://ec.europa.eu/trade/issues/ bilateral/regions/acp/regneg_en.htm.
330. An evaluation is set out in Commission Staff Working Document, The Trade and Development Aspects of EPA Negotiations, SEC(2005)1459, 9 Nov. 2005.
331. Art. 36(5) Cotonou.
332. The EU supports this on the ground that regional integration brings both trade and investment benefits. See European Commission, 'Economic Partnership Agreements: Questions and Answers', 1 Mar. 2007, available at: http://ec.europa.eu/trade/issues/bilateral/regions/acp/ memo010307_en.htm.
333. Cuba, an ACP country, is not a party to the Cotonou Agreement and therefore not involved in EPA negotiations. In addition, Somalia and East Timor are not at present involved in EPA negotiations: See EU Economic Partnership Agreements, Answer to Question 105203, HC Debs, C748W, 11 Dec. 2006.
334. Cook Islands, Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, Vanuatu.
335. Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Dominican Republic, Grenada, Guyana, Haiti, Jamaica, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines, Surinam, Trinidad and Tobago. All except the Dominican Republic are members of the Caribbean Community (Caricom and all are members of Cariforum.
336. Benin, Burkina Faso, Cape Verde, Côte d'lvoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, Togo. All except Mauritania are members of the Economic Community of West African States (ECOWAS).
337. Cameroon, Central African Republic, Chad, Congo, Equatorial Guinea, Gabon, and São Tomé and Príncipe. All except São Tomé and Príncipe are members of the Communauté Economique et Monétaire de l'Afrique Centrale (CEMAC).
338. South Africa, Botswana, Lesotho, Namibia, Swaziland (all SACU; Swaziland also COMESA), Mozambique, Angola, and Tanzania (EAC). All are members of SADC, but other SADC members are part of the ESA Group.
339. Burundi, Rwanda, Kenya, and Uganda (all EAC), Malawi, Mauritius, Madagascar, Zambia, and Zimbabwe (all SADC), Comoros, Democratic Republic of Congo, Djibouti, Eritrea, Ethiopia, Seychelles, and Sudan. All of these are members of COMESA except for Kenya and Uganda. In addition, Swaziland is a COMESA member but also part of the SADC Group, and Egypt and Libya are COMESA members but not involved in EPA negotiations.
340. Bilal and Grynberg, 'EPAs Make Sense Only if They Foster Development: A Broad Overview', in S. Bilal and R. Grynberg (eds), Navigating New Waters: A Reader on ACP-EU Trade Relations (2007), i, 15.
341. The legal problems are greater for customs unions with exclusive competence in trade, such as the European Community.
342. See Desta, 'EC-ACP Economic Partnership Agreements and WTO Compatibility: An Experiment in North-South Interregional Agreements?', 43 CML Rev (2006) 1343.
343. This understanding is stated in the Explanatory Memorandum to the European Commission's Draft Mandate to negotiate EPAs, 9 Apr. 2002, available at: http://trade.ec.europa.eu/doclib/html/112023.htm. In fact, a number of the ACP EPA negotiating countries are not WTO Members. For agreements with such countries, strictly speaking, a waiver should be obtained under Art. XXIV:10 GATT.
344. Australia suggests coverage of 95% together with consideration of 'highly traded' and potentially traded products: See Submission on Regional Trade Agreements - Paper by Australia, WTO Doc TN/RL/W/173/Rev. 1, 3 Mar. 2005 and further at WTO Doc TN/RL/W/180, 13 May 2005. The somewhat vaguer EU position is set out in its Submission on Regional Trade Agreements, WTO Doc TN/RL/W/179, 12 May 2005.
345. A convenient summary of the economics theories underlying Art. XXIV is found in WTO, World Trade Report 2003 (2003), at 46-66.
346. See supra notes 149 to 151.
347. In 1997 South Africa acceded to the Lomé Convention except for its trade provisions. Its trade with the EU is governed by a separate EU-South Africa agreement (TDCA), supra note 245. A review of this agreement is taking place simultaneously with the SADC group EPA negotiations, which South Africa was invited to join in 2006: See COM(2006)673, 28 Nov. 2006.
348. European Commission, 'EC Market Access Offer in Economic Partnership Agreements (EPAs)', 4 Apr. 2007, available at: http://ec.europa.eu/trade/ issues/bilateral/regions/acp/mao040407_en.htm. As detailed in this document, sugar will be liberalized only in 2015, 6 years later than under the EBA, and then still subject to special safeguards. For French objections see Note from the French Delegation to the Council, Brussels, 8410/07, 13 Apr. 2007.
349. Art. 37(6) Cotonou.
350. Art. 36(4) Cotonou. The 'special legal status' of the sugar protocol refers to the 'indefinite' duration of this protocol, as set out in Art. 13 of Annex V and Art. 1 of Prot. 3 to Annex V. Art. 10 of Prot. 3 allows for denunciation with 2 years' notice, but a Declaration by the Community on this provision states that this 'is for the purposes of juridical security and does not represent for the Community any qualification or limitation of the principles enunciated in Article 1 of that Protocol'. It is hard to know what to make of this language.
351. Unlike Art. XXIV GATT, the equivalent WTO provision for services provides that '[w]here developing countries are parties to a [regional integration agreement]... flexibility shall be provided for regarding the conditions [equivalent to Art. XXIV:8 GATT] in accordance with the level of development of the countries concerned': Art. V(3)(a) of the WTO General Agreement on Trade in Services (GATS).
352. See supra note 150.
353. See Submission on Regional Trade Agreements - Paper by the ACP Group of States, WTO Doc TN/RL/W/155, 28 Apr. 2004
354. Onguglo and Ito, 'In Defence of the ACP Submission on Special and Differential Treatment in GATT Article XXIV, in Bilal and Grynberg, supra note 287 and Lang, 'Renegotiating GATT Article XXIV - a Priority for African Countries engaged in North-South Trade Agreements', ATPC Work in Progress No 33, Feb. 2006. Negotiations to clarify the development dimension of Art. XXIV were mandated in the Doha Ministerial Declaration, supra note 220, para. 29.
355. See supra at 724-725.
356. See supra, text to note 99.
357. Theoretically, of course, full market access could also be offered on a most-favoured-nation basis.
358. See supra at 742.
359. Somewhat ironically, the same factors affect the EU's obligation to 'maintain total market access' for MFN banana suppliers when rebinding its banana tariff. See EC - The ACP-EC Partnership Agreernent-Recourse to Arbitration, WT/L/616, circulated 1 Aug. 2005, paras 68 and 73
360. and also EC- The ACP-EC Partnership Agreernent - Second Recourse to Arbitration, WT/L/625, circulated 27 Oct. 2005, paras 30-39; though in the end in this arbitration the arbitrator did not need to take these into account: Para. 116. The obligation is contained in WTO Doc WT/MIN(01)/15, supra note 152, Annex 1.