Defining the Character of the Enabling Clause: Towards a More Beneficial GSP Scheme

Abstract

The need for an apt delimitation of the Enabling Clause and its applicability to measures covered by Article 1:1 of the GATT cannot be over-emphasized. The efficacy of the entire GSP scheme, which is basically a response to developing countries' agitations for 'special and differential treatment', taking into consideration their 'development, financial and trade needs' depends on it. Thus the strategic role of the Enabling Clause in promoting trade as a means of stimulating economic growth and development in such developing countries makes it imperative that its applicability is not unduly limited under any guise. In characterizing the Enabling Clause, this paper engages in an incisive analysis of the relationship between the Clause and Article 1:1 of the GATT 1994 and the consequential incidences of the burden of proof. It reviews relevant jurisprudence on the subject and with the aid of external interpretative aid and judicial analogy, goes on to demonstrates that the Enabling Clause is not just a mere exception but one that operates to exclude the applicability of Article 1:1 of the GATT from its covered measures, just falling short of being a 'positive right' establishing obligations in its own right.