The Conundrum of WTO Accession Protocols : In Search of Legality and Legitimacy

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: the WTO may prescribe more stringent rules for acceded members, depending on the result of individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain to be answered. The accession protocols effectively modify the provisions of the WTO multilateral trade agreements, but the legal basis for so doing has never been properly explained and the relationship between the accession protocols and the WTO agreements remains unclear. Normatively, differential treatment of acceded members derogates from the WTO principle of nondiscrimination, but does so without proper justification. Confusion over the legal nature of accession protocols and the lack of clear rationale for the country-specific rules have led to problematic jurisprudence, creating uncertainty in the rights and obligations of acceded members vis-à-vis other members of the WTO. This article aims to resolve the conundrum of WTO accession protocols. Building upon existing literature, the author takes a broad comparative and historical approach to examining WTO accession practice. On the question of legality, the article proposes that WTO accession protocols should be characterized as subsequent agreements modifying the WTO agreements, or more precisely as subsequent practice of an international organization modifying its underlying treaties, and that their relationship with the WTO agreements should be defined accordingly. In light of this understanding, the article examines and critiques the Appellate Body's assessment of the relationship between accession protocols and the WTO agreements in the recent case of China-Rare Earths. On the question of legitimacy, the article identifies the lack of reason and transparency in the accession rules as the main issues, and critiques the “entry fee” theory offered by a WTO panel as the justification for any accession rules. The article then makes suggestions on what should and can be done to mitigate the legitimacy deficits created by WTO accession practice