Flesh on a Legal Fiction: Early Practice in the WTO on Accession Protocols

Abstract

The World Trade Organization (WTO) has recently seen a spate of disputes over provisions in an unfamiliar instrument, the Protocol of Accession. While the process of accession to the WTO is traditionally an intensely political and secretive one, the focus of this article is on the novel legal implications of modern-day Protocols of Accession. It seeks to examine the clandestine manoeuvrings of the accession process that are, arguably, fracturing the single undertaking of rules in the WTO. Valuable work done by commentators thus far has provided a reservoir of information about the content of certain Protocols of Accession and the divergence from the common law of the WTO (WTO-plus or WTO-minus provisions in Protocols of Accession). This article seeks to build on that work by examining the recent troubling dispute settlement activity in the realm of Protocols of Accession and by introducing a scrutiny of the legality of certain provisions of the Protocol of Accession. This article argues that the true effect of certain provisions in Protocols of Accession is aptly described as an ‘impermissible reservation’ to WTO agreements. In this regard it analyses and critiques the recent work of the International Law Commission on Reservations.