Legal Research On WTO-Plus Obligations

Compared with other international organizations, WTO is characteristic of being "rule-based". However, the rule omission in the WTO accession is revealed by the WTO accession protocols and WTO-plus related issues. To explore the relevant legal issues on WTO-plus obligations is of great significance in theory and practice from the perspectives of past, present and future.Introduction part introduces the background of the research and raises the questions to be explored, briefly summarizes and reviews the existing literatures, outline the research way, structural arrangements and research methods.Chapter Ⅰ introduces the concepts and manifestations of WTO accession protocols and WTO-plus obligations. WTO accession protocols originated from the accession mechanism of GATT, but the succession produced many legal problems related with WTO-plus provisions. WTO obligations occurred from the commitments in accession protocols of new members are more stringent than those of WTO agreements, which scatter in the accession protocols and some paragraphs of Working Party Reports, hidden and not easily detectable. Many WTO members have committed to undertake WTO-plus obligations with varying degrees covering the fields of trade, economy, finance and even administrative and judicial systems, and export tax commitment is under thorough research due to the concern initiated by some WTO cases. There exist many WTO-plus obligations in China Accession Protocol and the WTO-plus obligations in the field of subsidy are most complex with far-reaching impact.Chapter Ⅱ analyzes the reasons of the existence of WTO-plus obligations from the perspectives of institution and politics. WTO accession mechanism is not only different from that in GATT era, but also distinguishes from that in UN, EU and IMF. Though it is possible that the incumbent members of the international organizations may deter the joining of applicants on the grounds of political factors, the rights and obligations assumed by the new members would be the same as those of incumbent members once the application of accession were approved. Despite the multilateral trading system is supposed to be "low politicization" by the functionalist and many WTO members, it is common to see politicization in both GATT and WTO. The process to accede WTO is time-consuming and cumbersome as some incumbent members would influence the accession of new members with political reasons. Some large trading countries actively get involved in or even dominate accession negotiations, especially the United States is very good at utilizing the "mutual non-application provisions" to deploy indirect political influence on new members.Chapter III explores the systematic issues arising from WTO-plus obligations. The availability of GATT general exception to WTO-plus obligations relates to systematic issues of WTO such as the legal status of accession protocols in WTO in essence. There are different understandings for the scope of "WTO Agreement", "GATT 1994" and "accession protocol". It would be logical inference to define "WTO Agreement" as "Marrakesh Agreement Establishing The World Trade Organization", "GATT 1994" as a set of dynamic norms on trade in goods, "accession protocol" as bilateral treaty. As to the nature of WTO-plus obligations, no matter what kinds of treaty theory are applied to analyze it, such as treaty reservations, treaty amendments, successive treaties or subsequent agreements, contradictions and loopholes would still emerge. This paper attempts to defined the accession protocol as "special and differentiated application of WTO general rules according to the specific circumstances of new members", with the WTO general rules not affected. WTO accession protocols are not automatically enforceable under DSU even though they are legal binding and constitute the source of WTO law. However, there exists enforcement basis for accession protocols as they are integral parts of "Marrakesh Agreement" and there are "intrinsic correlations" between the provisions of accession protocols and multilateral trade rules. No matter from the perspectives of etymology or WTO practice, "integral parts" have profound implications with the meaning of "combining into one". Thus, the rights and obligations of new members in WTO legal system cannot be identified simply by "WTO Agreement" or only by accession protocol but the combination of the two instead.Chapter IV reexamines the nature of WTO obligations, and the legality and legitimacy. The issue of the nature of WTO agreements and WTO-plus obligations is the requisite premise for the correct application and interpretation of WTO provisions though it has been underestimated for long.The substantive obligations of WTO members consist of "rules obligations" and "market access obligations" being the common rules and contractual commitments respectively, and they are universal, bilateral and reciprocal in nature. WTO-plus obligations are legal but not legitimate with the potential negative impact on the constitutionalization of WTO, as there are no standards and procedures for the enactments of them as well as the lacking of fairness.Chapter V explores the WTO-plus obligations under the rules of WTO judicial interpretation. The meaning and application of the treaty depends on the methods of legal interpretation. The treaty interpretation system in the modern time consists of the codified rules in Vienna Convention on the Law of Treaties 1969 ("VCLT" for short) and the customary rules uncodified by VCLT. And the interpretation rules in VCLT will continue to be the major ones during the WTO judicial process. When applying the rules of treaty interpretation, different elements in interpretations should be given different weights according to the types and characteristics of treaty obligations, and the roles of special customary rules and maxims for interpretation in practice, such as "dubio mitius"(restrictive interpretation) and the principle of good faith, shall be given attention to. There exist a considerable number of "treaty silence" in WTO accession protocols and it is necessary to be aware that "treaty silence" does not mean "non liquet". And the problems of "treaty silence" may be resolved by way of judicial interpretation with the function of "judicial law-making" to some extent. And the general exceptions of GATT, with the characteristics of flexibility, urgency and unpredictability, should be applicable to all of the obligations under GATT, including those relating to commercial policy and trade in goods etc. in accession protocols. In practice, when interpreting the exceptions, it is necessary to clarify that the inherent rights distinguish from defined rights, and restrictive interpretation does not mean restrictive application. The treaty itself, like organic tissues, in order to adapt to the environment, will evolve and develop, and the interpretation of the treaty should be based on contemporary environment and the development of the treaty itself. The research of "Treaty over Time" of International Law Commission indicates that, as the decline of the function of subsequent practice to modify treaty in theory and practice, evolutive interpretation would be given greater importance and be more frequent used as well. And the application of evolutive interpretation shall be based on subjective and objective elements simultaneously. In addition to the "evolution in fact", there is also "evolution in law" as the external rules of international law to be incorporated in the interpretation of the treaty according to VCLT 31.3.3 will promote the generation of evolutive interpretation. Evolutive interpretation is adopted in the cases of US-Shrimp and China-Publications and Audiovisual Products to interpret "exhaustible natural resources" and "distribution services of recording product", but close attention should also be paid to the tendency of variation and expansion in the use of evolutive interpretation which was reflected in the issue of "external base" in the relevant cases of subsidies and countervailing.The concluding part summarizes the main points on the whole, and corresponds to the relevant questions on accession protocols and WTO-plus obligations proposed in the introduction part. And it also concludes the enlightens for China, advances specific and further proposals as well.