Abstract
With the multilateral negotiations in the Doha Round in a state of suspended animation, the WTO continues to fulfill its fundamental roles in two main areas: the ongoing work of the dispute settlement system, and the accession of new Members. In the latter area, the past year has seen some progress with respect to the accession of Arab states. In addition, an overture towards future accession has been made by the Palestinians, in a formal request for WTO observership. At the same time, developments in intra-regional economic integration in the Middle East and North Africa (MENA) region have not been significant, in comparison to the state of affairs set out in the previous issue of the EYIEL. It therefore seems appropriate to focus in the current issue on questions related to Arab participation in the multilateral trading system.
The cutoff date for the survey in this article is May 10, 2010.
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Notes
- 1.
For a current survey, see WTO, WT/AB/13, Appellate Body – Annual Report for 2009, 17 February 2010.
- 2.
See Broude, Regional Economic Integration in the Middle East and North Africa: A Primer, EYIEL 1 (2010), p. 269.
- 3.
I addressed the issue of Palestinian accession on a formal, preliminary basis well in the past (see Broude, Accession to the WTO: Current Issues in the Arab World, JWT 32 (1998) 6, pp. 147, 161 et seq.). In the ensuing years, we have witnessed, inter alia, the unfortunate collapse of the Oslo process followed by the second Palestinian Intifadah and an Israeli clamp-down in the West Bank, Israeli disengagement from Gaza, inter-Palestinian strife between Fatah and Hamas, and a subsequent full-blown Israeli incursion into Gaza in 2008. These events, and the legal and economic developments that accompanied them, have inevitably had some effect on the analysis of the question of prospective Palestinian WTO Membership.
- 4.
See http://www.wto.org/english/thewto_e/acc_e/a1_liban_e.htm; the documents are unavailable on the WTO website, as of this writing.
- 5.
- 6.
- 7.
See WTO, WT/ACC/SYR/1, Accession of the Syrian Arab Republic – Request for Accession Pursuant to Article XII, 30 October 2001.
- 8.
See U.S. Department of State, Office of the Coordinator for Counterterrorism, Country Reports on Terrorism, 30 April 2009, Ch. 3, available at http://www.state.gov/s/ct/rls/crt/2008/122436.htm.
- 9.
Pub. L. 108–175.
- 10.
See US Department of State and the Broadcasting Board of Governors, Office of the Inspector General, Report of Inspection – Embassy Damascus, Syria, ISP-I-10-34A, March 2010, available at http://oig.state.gov/documents/organization/141119.pdf, p. 16.
- 11.
Israel has in the past participated in accession Working Party’s of Arab states with which it did not have diplomatic relations; for a description of Israel’s role in Egypt’s accession in the 1960s see Reich, The Threat of Politicization of the WTO, University of Pennsylvania Journal of International Economic Law 26 (2005) 4, pp. 779 et seq. (789–791).
- 12.
See Agazzi, Trade: Development More Important than Quick Conclusion of Doha, Interpress Service News Agency, 3 December 2009, available at http://ipsnews.net/text/news.asp?idnews=49527, quoting H.E. Ali Mchoumo, Ambassador of Tanzania, as saying that “Rather than being a smooth and fast process, some of the countries have to spend a lot of time on it. One country has spent eight years and the reasons advanced were of a political nature”.
- 13.
On the accession process see Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141 et seq. (150–155); on the increasing duration of accession procedures, and the reasons for it, see Jones, The Political Economy of WTO Accession: The Unfinished Business of Universal Membership, World Trade Review 8 (2009) 2, pp. 279 et seq.
- 14.
- 15.
In the UN System, the Permanent Observer Mission of Palestine is classified as a Non-Member State Entity, under the heading of “Other entities having received a standing invitation to participate as observers in the sessions and the work of the General Assembly and are maintaining permanent offices at Headquarters”; see http://www.un.org/en/members/nonmembers.shtml.
- 16.
See WTO, WT/L/770, Palestine – Request for Observer Status – Communication from Palestine – Application for Observership in the General Council and its Subsidiary Bodies, 6 October 2009. The Palestinians were granted observer status at the 2009 Ministerial Conference in Geneva and at the 2005 Ministerial Conference in Hong Kong. However, such observership does not automatically entail observer status at the General Council, see WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996 (the “MC/GC Rules of Procedure”), Annex 2, Paragraph 2.
- 17.
See WTO, WT/L/792, Palestine – Request for Observer Status – Communication from Palestine – Application for Observership in the General Council and its Subsidiary Bodies, 13 April 2009.
- 18.
See WTO, WT/L/770/Add.1, Palestine – Request for Observer Status – Communication from Palestine – Application for Observership in the General Council and its Subsidiary Bodies – Addendum, 23 October 2009.
- 19.
See Weymouth, “My Preoccupation Now is This Plan”, Newsweek, 2 November 2009, available at http://www.newsweek.com/id/219374.
- 20.
See reference in the Palestinian Opinion to “eventual membership”, p. 1.
- 21.
WTO, WT/L/792, Palestine – Request for Observer Status – Communication from Palestine – Application for Observership in the General Council and its Subsidiary Bodies, 13 April 2009, p. 1.
- 22.
See WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Annex 2, Paragraph 3.
- 23.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Paragraph 4.
- 24.
See WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Annex 2, Paragraph 4, 1st sentence, and Paragraph 8.
- 25.
See, e.g., WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996 fn. 1: “It is understood that in the case of a separate customs territory Member the credentials of its representatives shall have no implication as to sovereignty”.
- 26.
Palestine has been granted observer or similar affiliated status to various intergovernmental organizations, inter alia the World Tourism Organization, UN Educational, Scientific and Cultural Organization, and the International Labour Organization.
- 27.
WTO, WT/L/792, Palestine – Request for Observer Status – Communication from Palestine – Application for Observership in the General Council and its Subsidiary Bodies, 13 April 2009, p. 1.
- 28.
See Toth Stub, OECD Accepts Israel as Member, Wall Street Journal, 10 May 2010, available at http://online.wsj.com/article/SB10001424052748703880304575235910940084780.html?mod=WSJ_latestheadlines. Reportedly, “the PA’s Minister of Foreign Affairs Riyad al-Maliki sent letters to OECD leaders and foreign ministers of member countries, asking them not to approve Israel’s entry. Doing so would legitimize Israel’s “dangerous,” “illegal,” and “racist” policies toward Palestinian residents of the West Bank and East Jerusalem, Mr. Maliki wrote”. It is not difficult to see how such moves would not be conducive to Israeli consent to Palestinian WTO observership.
- 29.
See Shabi, Avigdor Lieberman Rules Out “Concessions” to Palestinians, Guardian, 1 April 2009, available at http://www.guardian.co.uk/world/2009/apr/01/israel-palestinians-lieberman-annapolis.
- 30.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Rule 10.
- 31.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Rule 11.
- 32.
According to Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141 et seq. (150), “[t]he only possibility that the Council has to reject an application at this stage, and to refuse the establishment of the Working Party, is for it to consider that the applicant is not a State nor a SCT in the sense of Article XII”.
- 33.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Annex 2, Paragraph 5.
- 34.
For example, the Vatican (The Holy See) is a permanent Observer to the WTO Ministerial Conference and General Council, although – and indeed because – in its request for observership it stated in no uncertain terms that it is not seeking WTO Membership; this approach was not immediately accepted by some WTO Members. See WTO, WT/L/221, Holy See – Request for Observer Status in the Ministerial Conference and the General Council, 2 July 1997; also WTO, WT/GC/M/21, General Council – Minutes of Meeting held in the Centre William Rappard on 16 July 1997, 6 August 1997.
- 35.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Rule 39.
- 36.
To be sure, the Palestinian Opinion does emphasize the pragmatism of WTO practice (at pp. 8–9), but not in terms of General Council discretion to de-link observership from eligibility for accession; rather, the plea is for pragmatism in the interpretation of eligibility terms for accession.
- 37.
WTO, WT/L/161, Rules of Procedure for Sessions of the Ministerial Conference and Meetings of the General Council, 25 July 1996, Rule 10. To be sure, one should not derive from observership at the Ministerial Conferences that Palestine has been recognized by the General Council as a State or SCT, but rather that the General Council has adopted a flexible approach to observership that enabled Palestinian observer status without determining whether the PA is indeed an SCT.
- 38.
As of this writing, Kosovo has not applied for either observership or accession to the WTO; and the question of Kosovo’s political status is pending before the ICJ (see ICJ, Request for Advisory Opinion – Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, 9 October 2008, available at http://www.icj-cij.org/docket/files/141/14799.pdf.
- 39.
Observership is not a “decision on accession” that would require Ministerial Conference approval, and certainly not an accession agreement that requires the approval of two-thirds of the Ministerial Conference under Article XII:2 WTO. MC/GC Rules of Procedure make it clear that observership is within the regular decision-making authority of the General Council. See also Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141 et seq. (150).
- 40.
Unfortunately, the Palestinian Opinion skirts some of the questions relating to the legal capacity of the requesting entity, by using the terms “Palestine” and “the Palestinian National Authority” in alternation, and at times referring only to “the Palestinians” or “the Palestinian side”. The legal standing of the Palestine Liberation Organization (PLO), who is in fact the entity that has signed several trade agreements “for the benefit of the Palestinian Authority”, is also not addressed in the Palestinian Opinion.
- 41.
The Palestinian Opinion distinguishes the question of eligibility for WTO observer (and Membership) status, from “other contexts in which statehood might matter” (at p. 2). This can be read, at the least, on the background of the submission by the PA of a “Declaration Recognizing the Jurisdiction of the International Criminal Court”, dated 21 January 2009, with reference to Article 12(3) of the Rome Statute Establishing the International Criminal Court (UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998), 2187 UNTS 90) (available at http://www.icc-cpi.int/NR/rdonlyres/74EEE201-0FED-4481-95D4-C8071087102C/279777/20090122PalestinianDeclaration2.pdf). Article 12(3) ICC applies to “a State which is not a Party” to the Statute, and the ICC Prosecutor is currently weighing the capacity of the PA to make such a declaration on this basis. For conflicting views on this issue, see Benoliel/Perry, Israel, Palestine and the ICC, Boston University International Law Journal (2010, forthcoming); Quigley, The Palestine Declaration to the International Criminal Court: The Statehood Issue, Rutgers Law Record 35 (2009), p. 1.
- 42.
The GATT 1947 included two mechanisms for SCTs to gain Contracting Party status – either through sponsorship under Article XXVI:5(c) GATT or through independent, non-sponsored accession under Article XXXIII GATT. The possibility of sponsored admission has no corollary in the WTO; the only option is unsponsored accession under Article XII WTO.
- 43.
Southern Rhodesia (Zimbabwe) is, however, hardly a positive historical example of SCT participation in the GATT/WTO system and smooth transition from SCT to State; Zimbabwe did not have a permanent mission to the GATT until 6 years after it became independent (see Hess, Zimbabwe Case Study on Trade Negotiations, ODI Working Paper, October 2001, available at http://www.odi.org.uk/resources/download/3616-working-paper.pdf, p. 29).
- 44.
See, e.g., GATT, W. 18/3, Admission of Sierra Leone as a Contracting Party, 17 May 1961.
- 45.
See Kunugi, State Succession in the Framework of GATT, AJIL 59 (1968), pp. 268 et seq.
- 46.
See GATT/1626, Liechtenstein becomes 120th Member of the GATT, 31 March 1994, available at http://www.wto.org/gatt_docs/English/SULPDF/91770052.pdf.
- 47.
See WTO, WT/MIN(01)/4, Ministerial Conference, Fourth Session – Report of the Working Party on the Accession of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, 11 November 2001.
- 48.
See Henckaerts (ed.), The International Status of Taiwan in the New World Order: Legal and Political Considerations, 1996; Crawford, The Creation of States in International Law, 2006, pp. 196–221.
- 49.
At p. 1 and 9, respectively.
- 50.
This is in fact acknowledged in the Palestinian Opinion, p. 9.
- 51.
See Palestinian Opinion, p. 3, with reference to Article XXIV:2 GATT.
- 52.
See discussion in Broude, Accession to the WTO: Current Issues in the Arab World, JWT 32 (1998) 6, pp. 147, 159–160; and Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141 et seq. (146–147).
- 53.
See Palestinian Opinion, p. 2: “No government would accept […] that autonomy as understood by WTO rules for purposes of status and eligibility is relinquished upon the entry into bilateral trade agreements”.
- 54.
See discussion, unrelated to the PA, in Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141 et seq. (145–146); Parenti discards the argument that the “full autonomy” criterion applies to States, with specific reference to States that are in customs union arrangements with WTO Members at the time of the request for accession, but establishes in contrast that among non-State SCTs, only those in possession of “full autonomy” may be considered for accession.
- 55.
See Article 2, Protocol of Provisional Application (PPA), T.I.A.S. 1700, 55 U.N.T.S. 308PPA, 30 October 1947.
- 56.
The Paris Protocol is the Protocol on Economic Relations between the Government of Israel and the PLO representing the Palestinian People, done at Paris on 29 April 1994. It was included as an annex to the Israel-PLO Agreement on the Gaza Strip and the Jericho Area, 4 May 1994, 33 I.L.M. 622 (1994) and subsequently partially incorporated and expanded upon in the Agreement on Preparatory Transfer of Powers and Responsibilities, 29 Aug. 1994, 34 I.L.M. 455 (1995). It was ultimately added as Annex V of the Israel-PLO Interim Agreement on the West Bank and the Gaza Strip, 28 Sept. 1995, 36 I.L.M. 551 (1997). For early analyses of these arrangements see Kleiman, The Economic Provisions of the Agreement between Israel and the PLO, Israel Law Review 28 (1994), p. 347; and Elmusa/El-Jaafari, Power and Trade: The Israeli-Palestinian Economic Protocol, Journal of Palestine Studies 24 (1995) 2, p. 14.
- 57.
The strongest element of separateness can be seen in Article III:15 of the Paris Protocol, according to which “The clearance of revenues from all import taxes and levies, between Israel and the Palestinian Authority, will be based on the principle of the place of final destination”. This provision is not referred to in the Palestinian Opinion, but strongly suggests a distinction in the tariff treatment of the territories of Israel and the territory controlled by the Palestinian Authority.
- 58.
See e.g. WTO, G/SG/N/7/ISR/1, Notification under Article 12.4 of the Agreement on Safeguards – Israel – Steel Rebars, 26 June 2009, p. 7, listing by Israel of Palestine as a developing country to which a provisional safeguard measure does not apply.
- 59.
The Palestinian Opinion, in contrast, eschews the relevance of de facto limitations for the analysis of eligibility for observership (at p. 6); the conditions on the ground enhance the PA’s status as an SCT, but impair its full autonomy. As argued above, full autonomy is not required for observership, subject to the General Council’s discretion.
- 60.
See Broude, Accession to the WTO: Current Issues in the Arab World, JWT 32 (1998) 6, pp. 147, 162.
- 61.
See Parenti, Accession to the WTO, Legal Issues of Economic Integration 27 (2000) 2, pp. 141, 146: “an SCT that does not cover tariffs will likely fail the test of autonomy of external commercial relations”.
- 62.
Palestinian Opinion, p. 5.
- 63.
See Palestinian Opinion, p. 4.
- 64.
See in particular Article I:1 Israel-PLO Interim Agreement on the West Bank and the Gaza Strip, 28 Sept. 1995, 36 I.L.M. 551 (1997), according to which any power anything not expressly transferred to the PA remains in Israeli authority.
- 65.
See Palestinian Opinion, p. 5.
- 66.
The Greater Arab Free Trade Agreement, created in 2005. On GAFTA see Broude, Regional Economic Integration in the Middle East and North Africa: A Primer, EYIEL 1 (2010), p. 269.
- 67.
See Syria, Ministry of Agriculture and Agrarian Reform, National Agricultural Policy Center, working Paper No. 8, Implementation of the Great Arab Free Trade Area Agreement: The Case of Syria (undated), www.napcsyr.org/dwnld-files/working_papers/en/08_gafta_en.pdf.
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Broude, T. (2011). MENA: The Question of Palestinian Observership and Accession to the WTO. In: Herrmann, C., Terhechte, J. (eds) European Yearbook of International Economic Law 2011. European Yearbook of International Economic Law(), vol 2. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-14432-5_13
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