General Agreement on Tariffs and Trade (GATT)

The panelists in this inaugural webinar of the Canadian Yearbook of International Law will focus on some of these emerging questions. Comprising of academia, practice and policy experts, our panelists seek to shed light on some of the nagging issues of our day in search of a way forward.

Aniekan Ukpe’s book on Special and Differential Treatment (SDT) in the WTO is written at an inflection point in the World Trade Organization (WTO) and many other international organizations – one of increasingly deepening polarization between developed and developing countries and their respective coalitions. One of the central issues in the divide has been the non-fulfilment of developmental objectives set out in respective legal frameworks by international institutions, and the inability to reform. Negotiations on redressing SDT under the WTO have now stretched over 20 years in the Doha Development Round, with no middle-ground reached.

WTO Members have discussed WTO reform since the collapse of the WTO Appellate Body (AB) in 2019, which was caused mainly by the US opposition to appointing new AB members. The US attacked the AB for its performance and its interpretation of WTO rules. The US has also consistently criticized the WTO’s incapability to reach agreements and reform itself. Nonetheless, this Western discomfort towards the organisation and the AB began at the Third Ministerial Meeting in Seattle (1999) when developing countries opposed the Global North’s attempt to open new trade negotiations. This push continued during the Fourth Ministerial Conference in Doha(2001), where the membership loosely agreed on a mandate for “Global and Sustainable Development”, albeit one without clear expectations to cut a deal in line with such a mandate of achieving a fair balance between trade and development at the multilateral trading system. One ministerial conference after the other, there was a failure to agree on Western driven “Development Agenda” until the Members agreed on the Trade Facilitation Agreement and the agricultural subsidies exports prohibition in Bali (2013) and Nairobi (2015), respectively. However, and even after the collapse of the AB, a criticised agreement on fishery subsidies (2022) was reached with a sunset clause of 5 years, making it in turn a chimera because of the short term.

The introduction of the World Trade Organization (WTO) in 1995 was considered a historic milestone for the rules-based trade order instituted in the aftermath of World War II. In particular, the Dispute Settlement Mechanism (DSM), a rules-based dispute settlement system designed to ensure fair resolution of trade disputes among WTO members, was hailed as a "crown jewel" of the new system. Although not devoid of criticism, the two-tier system of the DSM had a relatively excellent start to life. Considered one of the most active international dispute mechanisms, especially since the turn of the millennium, the DSM has handled 621 disputes brought to the organisation, with over 350 rulings issued since its inception in 1995. However, the system's success has waned in recent years, effectively "grinding to a halt" with the U.S. spearheading its sabotage. Although the US was a major architect for its introduction in 1995, it opposed the appointment of new Appellate Body members, through successive US administrations and there are now no Appellate Body members since 2019. The demise of the Appellate Body created an impasse in the WTO that is yet to be resolved despite several efforts from WTO members. A primary criticism of the current system by the U.S. is that the Appellate Body has overstepped its limits and created new rules not envisaged by the WTO, an approach that the U.S. maintains does not support its interests. In this analysis, we argue that the proposed reforms to the WTO's DSM by the U.S. are self-serving, aligning with a consistent pattern of hegemonic powers shifting the goalposts and changing the rules when they face adverse consequences—the "bite"—of a regime they erstwhile championed.

Dispute settlement at the World Trade Organisation (WTO) is in urgent need of reform. For nearly two decades, the USA had accused the Appellate Body of judicial overreach and action against the institution escalated under both the Obama and Trump administrations. In November 2022, the quasi-judicial system that has long been referred to as the ‘jewel in the crown’ of the WTO lost its appellate function as the term of its final Member, Dr Hong Zhao, expired. With the US refusal to reappoint members to the Appellate Body, the WTO’s dispute settlement system has been slowly asphyxiated. The WTO’s two-tier dispute settlement system was designed to ensure that Members had access to transparent, independent and timely decision-making.

Migrants and migrant workers from the Global South carried the economies of the Global North on their backs during the Covid-19 pandemic. On the one hand, millions of migrant workers in agriculture, trans-portation, care, food processing, construction, and other essential sectors continued working while the world shut down. On the other hand, migrant workers faced some of the harshest and most punitive treatment due to their status or lack thereof; many migrant workers were detained, deported or subjected to severe and inhumane treatment coupled with the physical, emotional and psychological impact of the pandemic. The pandemic unveiled high levels of nationalism, racism and xenophobia that impacted mi-grants globally and states have used the momentum to justify heavy handed measures and increased migration restrictions and the monitoring of migrants.

Electricity security is in today’s world a critical component for a well-functioning economy. Many African countries rely heavily on fossil fuels for electricity generation, while others have successfully harnessed renewable energy sources – Kenya being an example, with over 80% of its power generation being from renewable energy sources. With the global push to de-carbonise national economies, particularly the power sector, the interdependence of countries through electricity trade will become increasingly important. Countries are now only looking to develop their own clean energy capacity, but will in future, also seek to harness that of neighouring countries through cross-border power trade.

In this piece, I argue that Nigeria’s non-compliant behaviour is prevalent and entrenched in the field of international trade law, and that this behaviour is largely influenced by Nigeria’s perception of its national economic interests, which are underpinned by the protectionist policy of import-substitution. But Nigeria’s poor adherence to international trade rules should also be seen in the context of its general lack of commitment to the rule of law.

Should the Kenya-United States Free Trade Agreement be concluded, it would violate Article 37 of the Protocol on the Establishment of the East African Customs Union. Article 37 requires a Partner State to notify the EAC of a new trade agreement even when there is merely a proposed trade agreement. Article 37 of the Protocol requires that Partner States notify the other Partner States before offering a third-party preferential market access since Partner States share a common Customs territory.

The aim of this piece is to contribute to the evolving debate around the AfCFTA and its relationship with the WTO. It considers whether the practice of African RTAs to rely on the Enabling Clause since 1979 should be replicated. Considering the ambition of the AfCFTA for a deep integration, aiming at liberalising trade in goods, services, investment, intellectual property, competition, etc, the Enabling Clause appears as a second-best option.