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Barriers to universal membership of the World Trade Organization.

Abstract

This article examines the feasibility of achieving the World Trade Organization's stated aspiration of achieving universal membership. The article first examines the requirements for accession, and argues that the commonly-used definition of universal membership--accession to the WTO by all members of the United Nations--is too narrow having regard to the accession provisions of the relevant WTO Agreements. A broader interpretation of the concept of universal accession reveals the true extent of the 'accession issue' by showing the number of accessions that may be negotiated in future. The article then considers the potential for truly universal membership of the WTO, and the obstacles to that being achieved. This broader potential membership includes a very high proportion of less- and least-developed countries, micro-states, and transitional economies, all of which face particular accession challenges that are examined in the final parr of the article.

Introduction

2012 was an exceptional year for the expansion of the membership of the World Trade Organization ('WTO'). Since 2008, no new member had been admitted to the organisation, which further compounded the sense of malaise about the efficacy of the organisation in the face of the stalled Doha Round negotiations. However, in 2012 the WTO admitted four new members through the accession process: Montenegro, Samoa, the Russian Federation and Vanuatu. Negotiations were also concluded for the membership of the People's Democratic Republic of Laos and Tajikistan, paving the way for their accession in early 2013.

These accessions will bring WTO membership to 159, and the individual accessions had symbolic significance for a number of reasons. The successful conclusion of negotiations for Vanuatu, Samoa and Laos, all less- (or least-) developed countries ('LDCs'), (1) was portrayed as a celebration of the WTO's development agenda. The Russian Federation, Montenegro and Tajikistan are all former socialist, centrally planned economies, now 'brought into the fold' within a quintessentially neoliberal institution. Finally, the accessions of the Russian Federation and Vanuatu were two of the longest and most politically challenging accession processes ever faced by the WTO. Commencing in June 1993 and July 1996 respectively, each was fraught with numerous political controversies that delayed and threatened to derail accession at various stages. (2)

The accession of the Russian Federation completes the WTO membership of the BRICs group of countries (Brazil, Russian Federation, India, China and South Africa), powerful, populous and rapidly developing states predicted to be the future key economic powers. (3) The accessions in the past decade of Vietnam, Taiwan and Saudi Arabia, plus China in 2001, have rounded out WTO participation by the most economically significant economies in the world. According to recent statistics, WTO members now account for more than 97 per cent of world trade. (4)

However, the WTO aspires to universal membership, which is generally defined as membership of the WTO by all 192 member states of the United Nations ('UN'). (5) Universal membership by this definition requires 25 further states to complete accession negotiations that are already underway, and a further 14 states to commence the process.

How feasible is the concept of universal membership? As indicated above, the recent flurry of accessions was unusual. This article examines the obstacles to universal membership of the WTO, focusing on the substantive, procedural and practical difficulties that the remaining acceding members face. (6) First, it explains the concept of universal membership, and the shortcomings of UN membership as a yardstick, pointing out that the potential membership of the WTO is much broader than the UN-based definition suggests. Second, the rules for WTO membership are explained, with particular emphasis on accession. The article then considers current non-members, highlighting how the economically and politically vulnerable nature of most of these potential members will inevitably make accession a challenging--and possibly unachievable--process.

II 'Universal Membership'

'Universal membership' is a concept regularly invoked in the context of accession, (7) and is usually taken to mean accession to the WTO of all members of the UN. While this definition is useful as a simple yardstick, it belies the more complex reality that there are asymmetrical criteria for membership of the two organisations.

Article 4 of the Charter of the United Nations permits membership by 'states' that fulfil the other requirements of art 4, whereas both art XXIII of the GATT 1947 (8) and art XII of the Marrakesh Agreement (9) permit membership by either a 'state' or 'separate customs territory', provided that the government concerned has 'full autonomy in the conduct of its external and commercial relations and of the other matters provided for in this Agreement and the Multilateral Trade Agreements'. The potential membership of the WTO is therefore considerably broader than that of the UN.

For this reason, there are quite a number of current and potential WTO members that are unable to attain UN membership, but that are nonetheless very significant members of the WTO. Hong Kong and Macau are perfect examples--as Special Administrative Regions of the People's Republic of China, they are not members of the UN, but are both original members of the WTO. The provisions of the WTO Agreements do not require the determination of the vexed question of the legal status of Taiwan under international law. (10) Thus, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu, known for convenience as 'Chinese Taipei', has been a member of the WTO since its accession on 1 January 2002. (11) The European Union, itself a supranational organisation, is also an 'economic and monetary union', (12) and therefore a WTO member, despite having only observer status at the UN.

There are around 50 constituent countries, territories or dependencies of various types that are not independent members of the UN. These constituent countries have governments with varying degrees of autonomy and independence from the states to which they officially belong, some of them designated 'non-self-governing' territories by the UN in accordance with the work of the Special Committee on Decolonization. (13) These include Greenland, Bermuda, French Polynesia, the Cayman Islands, the Cook Islands, Western Sahara, Sint Maarten, New Caledonia, Niue, Puerto Rico, and Reunion. Whether any of these territories is eligible for WTO membership depends on interpretation of the Marrakesh Agrement art XII requirement of 'full autonomy in the conduct of its external and commercial relations'. Many of these territories have, for example, independent heads of state, legislatures, judiciaries and customs services and may be able to assert that they are eligible for WTO membership. States that have declared independence and obtained partial recognition, but not UN membership, may also be eligible for WTO accession, and include Palestine, Kosovo, Northern Cyprus, Transnistria, Abkhazia and South Ossetia.

The potential WTO membership of these territories and contested states is generally overlooked, and there is no doubt that the membership of some of them would be deeply contested by some existing WTO members. However, many have sufficient autonomy to accede to the WTO, or may continue to expand their autonomy and be eligible for membership in the future. Recognising their existence as potential members strengthens the claim that more attention should be paid to the WTO accession process, as there are a great many more potential members of the WTO than may first be apparent.

III Formal Requirements of Accession

The WTO's accession procedures were very closely modelled on the accession procedures of the GATT 1947, (14) and were not the subject of specific negotiations during the Uruguay Round. However, there is a dramatic difference in the attitude towards accession between the GATT 1947 and the WTO. Curzon's observation of the GATT 1947 in the 1960s was that it was biased towards new members, with incumbent members 'not normally try[ing] to drive too hard a bargain in payment of concessions which they made to third countries many years before'. (15) However, by the 1990s, and in a dramatically different political context, the vast number of accessions strengthened the resolve of the existing GATT members that there should be no lowering of the terms of accession simply to expand the organisation. (16)

Accession is one of the two ways two pathways for WTO membership. More than three-quarters of the WTO membership (123 members) joined the WTO as 'original members'. This was granted to the original signatories of the GATT 1947 and to what was then the European Communities, provided that they fulfilled three criteria. These criteria, stipulated in art XI of the Marrakesh Agreement, require acceptance of the Marrakesh Agreement and the Multilateral Trade Agreements found in Annex I of the Marrakesh Agreement, and annexure of their commitment schedules in relation to goods and services to the GATT 1994 (17) and the GATS (18) respectively. The possibility of original membership of the WTO remained open from the establishment of the WTO until March 1997. (19) Since that time, the only process available for membership is the accession process stipulated by art XII of the Marrakesh Agreement.

The requirements of art XII are at best vague, but they appear to impose at least two criteria for accession. The first, discussed above, is the requirement that a prospective member has conduct of its own commercial and external relations; in other words, it is sufficiently autonomous to make good on the obligations of the WTO Agreements. The second, and more onerous, requirement concerns the terms of accession, with art XII(1) requiring simply that the terms of accession 'be agreed between [the new member] and the WTO'. Thus, potentially any accession terms may be sufficient, regardless of how lenient or onerous they are, provided that 'the WTO' is in agreement. In reality, the agreement of 'the WTO' means the consensus of the existing membership. While art XII(2) grants power to the Ministerial Conference with the vote of two-thirds of the existing members, the decision requires unanimity because the Working Party needs to reach consensus on the terms of accession. (20) In practice, the Ministerial Conference or General Council have only acted on the basis of consensus in approving accessions. (21)

A Accession Process

The accession process formally begins with a written request from the prospective member to the Director-General of the WTO, 'indicating its desire to accede to the WTO under art XII'. (22) This request is circulated to the current WTO members for their consideration, and the General Council will then consider the application and recommend that a Working Party be established. Kennett notes that, like all matters in the WTO, the decision to establish a Working Party is conventionally reached by consensus, although technically only a two-thirds majority is required. (23) Acceptance is generally a straightforward process taking a couple of months; however, Syria and Iran have both experienced lengthy delays of nearly eight and nine years respectively in Working Party establishment. (24)

Following the consensus to establish a Working Party, the prospective member is required to submit a comprehensive memorandum on its foreign trade regime. The memorandum's purpose is to provide an overview of all aspects of the prospective member's political, legal and economic systems pertinent to the obligations required under the WTO Agreements. A note issued by the WTO Secretariat provides an outline of the matters that, at a minimum, must be included in the applicant's memorandum. (25) In addition, technical notes by the Secretariat specify in detail the types of information that is to be provided in relation to domestic support and export subsidies, (26) implementation (27) of the TRIPS Agreement, (28) and policies related to trade in services, (29) and to sanitary and. phytosanitary measures, and technical barriers to trade. (30) The scope of the inquiry into an applicant's trade regime is foreshadowed by the broad ambit of information requested in the Secretariat Note. The types of information states are required to provide in their memoranda include:

* A 'statement on the general objectives of the Applicant's trade policy regime and their relation with the objectives of the WTO';

* 'information on growth in trade in goods and services over recent years and forecasts for years to come';

* 'division of authority between central and sub-central governments';

* 'any legislative programmes or plans to change the regulatory regime';

* information on licensing procedures;

* comprehensive economic and trade statistics; and

* a list of all legal instruments affecting trade in goods, services, investment, intellectual property, and also relating to the judicial and administrative structures of the country. (31)

It is clear from the scope of this indicative list that the compilation of the memorandum is an onerous task and, as discussed below, the process demands extensive resources and expertise of the acceding state, beyond the reach of many developing and transitional economies.

Once the applicant has submitted its memorandum to the WTO Secretariat and the Secretariat is satisfied that it complies with the required format, the memorandum is distributed, although the WTO's procedures are unclear as to the intended recipients of the memorandum and members' eligibility to query its contents. While one paragraph of the procedures describes the memorandum as being 'for circulation to all Members', the subsequent paragraph refers only to members of the Working Party submitting questions. (32) Secondary sources also differ in their interpretation. Michalopoulos suggests that any members may submit questions, (33) while Kennett refers only to members of the Working Party submitting questions. (34) In reality, the distinction is of only marginal significance, as any member who is interested in the accession may be a member of the Working Party. (35) Kennett has also conducted empirical analysis of the membership of Working Parties, finding that the average Working Party consists of 20 members. (36) However, as members of the Working Party are self-selected, the composition varies depending on interest in the acceding state. For example, the great interest in the Chinese accession gave rise to a Working Party of 60 members, and the Working Party for the accession of the Russian Federation commenced with 40 members, rising to 65 by the conclusion of the process.

The next, and most controversial, stage is the bilateral negotiations. As noted above, the requirements of art XII(1) allow the terms of accession to be those reached between the acceding member and 'the WTO', although, in reality, this means that each of the interested WTO members must be satisfied with the accession package for consensus to be reached. For this reason, the bilateral negotiations are the most important, and most complex, part of the accession process.

As Burke observes, in the bilateral negotiations 'even a mouse can roar'; (37) an indication of the power that incumbent members have to potentially prevent the accession of a new member. The bilateral negotiations focus primarily on the terms of access to the markets of the acceding country, for both goods and services, and the results of the bilateral negotiations are then incorporated into the terms of accession for the benefit of all existing members. Lacey observes of the process:
  [E]ach Member seems to have its own 'pet' issues on which it will
  invariably take a firm and committed stance. Also interesting is the
  fact that when two neighbouring countries are negotiating with one
  another, one as a Member and the other as an applicant, the Member
  can sometimes be relied upon to make a whole series of bilateral
  trade issues part of the multilateral accession process, thereby
  capitalizing on its brief negotiating leverage. (38)


Multilateral negotiations occur in parallel with the bilateral negotiations and, in addition to concatenating the bilateral concessions into a single document, they focus on implementation issues (such as transition periods and phasing-in of access) and on the capacity of the acceding member to implement its obligations. At this stage, Lanoska reports, 'the overall regulatory framework of the country, its administrative institutions, and its capacity to consolidate the promised reforms, are carefully evaluated'. (39) The content of these negotiations remains confidential until the accession is complete, and even then it is only released in. summary form in the official documentation of the WTO, through summaries of the various formal (but not informal) meetings and the Report of the Working Party.

The final stage of accession negotiations requires formal acceptance of the accession package at the Ministerial Conference, based on the decision of two-thirds of the existing membership. (40) While art XII(2) of the Marrakesh Agreement specifies the two-thirds majority, in practice decisions are made on consensus in either the General Council or Ministerial Conference. (41) The formal decision to accept the accession concludes the membership process, and a new WTO Member is created on entry into force of the protocol. This occurs 30 days after the applicant formally accepts the terms of membership in accordance with its own domestic provisions for the ratification of international agreements.

B Accession Protocols

The basis on which a new member accedes is contained in the Protocol of Accession, which documents the new member's acceptance of the WTO Agreements as they stand at the date of accession. The protocol annexes the voluminous schedules of goods and services commitments, and also incorporates by reference any commitments made by the Report of the Working Parry. The Protocol of Accession is based on a template containing standard terms created by the WTO Secretariat, (42) although recent accessions have departed substantially from the original template in terms of the number of additional commitments incorporated into the protocols.

The standard accession protocol indicates that commitments in both the Working Party Report and the Protocol of Accession shall become 'an integral part of the WTO Agreements'; however, a review of accession terms by the WTO Secretariat demonstrates that not all the matters contained in these two documents are automatically legal commitments. The Secretariat report noted six types of accession terms:

* recitations of facts (for example, about the member's economic performance);

* generally applicable transitional provisions;

* transitional provisions granted to or imposed upon the individual acceding member;

* commitments to adhere to current WTO rules (often including specific national measures that must be implemented in order to comply);

* statements authorising domestic measures that are currently not in compliance with WTO obligations; and

* statements promising compliance with obligations that exceed current WTO rules, such as the agreement by China to accept non-market economy status with respect to anti-dumping actions for a period of 15 years. (43)

The stated intention of the WTO that the Protocol and Working Party Report form part of the WTO Agreements, and the diverse range of content within these documents, raises the interesting question of the legal status of these obligations. For example, although recitations of fact are considered by the WTO Secretariat to have no legal force, they must surely be considered to document the factual basis on which the accession negotiations, have taken place. Due to the complex information-gathering process that takes place, errors and omissions could occur due to translation difficulties, inaccurate transfer of information from subnational sources, or statistical errors. What might happen should such a situation arise has not been explored in a practical or academic context.

The commitments themselves can mirror the exact level of obligation specified in the WTO Agreements, or they may deviate from those obligations in some way. As Charnovitz notes, any commitments that deviate from the standard WTO Agreements are generally referred to as either WTO-plus or WTO-minus obligations, terms which in some situations can lead to ambiguity. In response, Charnovitz creates a typology of the four types of accession commitments, attempting to reduce the ambiguity and inconsistencies of previous analysis. (44)

WTO-plus obligations on applicants are by far the most common type of deviation from the WTO Agreements, because there are virtually no limits in either legal or practical terms to the matters that can comprise the accession negotiations. The inclusion of WTO-plus commitments is becoming more frequent, a fact noted by the WTO Secretariat, and is discussed below; and the perceived legitimacy of WTO-plus demands by the incumbent members further compounds the difficulties of new members acceding to the WTO, particularly given that many of the remaining non-members of the WTO are politically and economically vulnerable.

IV Profiles of Current WTO Non-Members and Institutional Responses

As indicated above, it is generally considered that the accession of 40 further UN members is necessary to achieve universal membership of the WTO. Taking the most expansive view of universal membership to include all possibly eligible entities, there are in fact close to 100 entities that could accede to the WTO, While the observations in this section are generally relevant to both UN members and non-members, statistical information refers to only UN members unless indicated otherwise.

Currently, there are 24 UN members in various stages of the accession process: Afghanistan, Algeria, Andorra, Azerbaijan, Bahamas, Belarus, Bhutan, Bosnia and Herzegovina, Comoros, Equatorial Guinea, Ethiopia, Iran, Iraq, Kazakhstan, Lebanese Republic, Liberia, Republic of Libya, Sao Tome and Principe, Serbia, Seychelles, Sudan, Syrian Arab Republic, Uzbekistan and Yemen. These states constitute 12.5 per cent of the 'UN's total membership. There are a further 14 that are members of the UN (seven per cent of total UN membership) but that have not applied for WTO membership. These are Eritrea, Kiribati, People's Democratic Republic of Korea, Marshall Islands, Micronesia, Monaco, Nauru, Palau, San Marino, Somalia, South Sudan, Timor-Leste, Turkmenistan and Tuvalu.

A Least-Developed Countries

A substantial proportion of non-members of the WTO are LDCs. The UN definition of an LDC encompasses three criteria: low income, low human development indicators (such as nutrition, health and education), and economic vulnerability. (45) By this definition, there are 48 non-member LDCs: 33 in Africa, (46) 14 in the Asia-Pacific, and one in the Caribbean. Over 40 per cent of the WTO non-members are LDCs, with 10 of these in various phases of negotiations: Afghanistan, Bhutan, Comoros, Equatorial Guinea, Ethiopia, Lao PDR, Liberia, Sao Tome and Principe, Sudan and Yemen. The remaining six--Eritrea, Kiribati, Somalia, South Sudan, Timor-Leste and Tuvalu--have not formally indicated any consent to commence accession negotiations, although the UN Council on Trade and Development has undertaken Advisory Missions to most of these states to advance consideration of WTO membership. (47) In other words, one-third of the world's total LDCs remain outside of the WTO system.

The Marrakesh Agreement art XI(2) contains principles for the special and differential treatment of LDCs. This provision requires LDCs to 'undertake commitments and concessions to the extent consistent with their individual development, Financial and trade needs or their administrative and institutional capabilities'. (48) However, as the United Nations Conference on Trade and Development ('UNCTAD') has observed, the principle of special and differential treatment has been honoured frequently in the breach. Vanuatu is used by UNCTAD as a case study, noting that despite its small population and LDC status, the demand was made that 'Vanuatu also sign the Agreement on Government Procurement (49) and the Agreement on Trade in Civil Aircraft, (50) both of which are plurilateral agreements and optional for existing WTO members. Additionally, UNCTAD notes, 'the S&D provisions available to 29 LDCs that were original Members of the WTO were substantially curtailed', (51) meaning that Vanuatu needed to specifically invoke and argue for special and differential treatment to which it is entitled under the WTO Agreements.

The experience of Vanuatu was one example that prompted greater debate in the Doha Round of LDC accessions. In 2001, the WTO noted, with some concern, that no LDC had ever acceded to the WTO under art XII. The Zanzibar Declaration called on the Ministerial Council to reform the accession process for LDCs and ensure that acceding LDCs were not required to agree to more onerous conditions than incumbent LDC members. (52)

In response to these criticisms, and particularly to the Zanzibar Declaration, the WTO's 2001 Doha Declaration specifically referred in para 9 to the importance of accelerating the accession negotiations for less-developed countries, and making accessions generally as streamlined as possible. It also directed the Secretariat to expand accession-related technical assistance to least-developed countries. (53) The following year, the General Council approved guidelines that encouraged existing members to 'exercise restraint' in accession negotiations with LDCs. (54) Rather than providing concrete benchmark, the 2002 Guidelines were expressed in largely aspirational terms, also encouraging priority to be given to LDCs for technical assistance. One of the only specific obligations in the 2002 Guidelines was that membership to the plurilateral agreements was not be made a condition of accession for LDCs.

At the Geneva Ministerial Meeting in 2011, it was finally recognised that the language of the 2002 Guidelines was inadequate to protect LDCs and to facilitate their accession on acceptable terms. (55) The Ministerial Conference instructed the creation of benchmarks to help determine appropriate levels of commitment, with the result being a 2012 Addendum to the 2002 Guidelines. (56) The benchmarks are not expressed as binding; rather, as levels of commitment to be taken into consideration when negotiating commitments. However, they serve as a useful analytical guide for LDC negotiators as to the commitments made by other states. Whether they offer tangible improvements to the LDC accession process remains to be seen.

B Developing Countries

The formal UN designation of 'LDC' is only one measure of the capacity of a state to engage in accession negotiations. Low income and economic vulnerability are two of several indicators used in the measurement, meaning that states may have low income and high economic vulnerability, but not be classified as an LDC due to stronger outcomes in other areas of human development. By contrast, the World Bank uses a measure of gross national income per capita, and has developed five categories:

* low-income economies;

* lower-middle income countries;

* upper-middle income countries;

* high-income economics; and

* high-income Organisation for Economic Cooperation and Development ('OECD') members. (57)

Once again, there are limitations in focusing only on one measure of development; however, comparing the UN and the World Bank classifications gives rise to some interesting anomalies. For example, there are several WTO non-members that are not classed as LDCs, but are classed as low-income economies by the World Bank. These countries exhibit similar levels of economic vulnerability to the LDCs; for example, both Tajikistan and the People's Democratic Republic of Korea have a gross national income at a lower level than other LDCs, but are not considered LDCs for other reasons. Constituent countries are also not included in the formal list of LDCs, but a number of them have similar economic vulnerability, such as Western Sahara. Similarly, there are 12 lower-middle income countries among the WTO non-member states, with six classified as LDCs, and six not. There is one state, Tuvalu, that is classified by the World Bank as an upper-middle income country by virtue of its gross national income per capita, but this is mainly income derived from the Tuvalu Trust Fund and licensing the country's top-level domain 'tv', (58) and Tuvalu is therefore classified as an LDC.

In the context of the WTO, it can be easy to overlook the fact that development issues impact upon a far greater number of countries than just the LDCs. Paradoxically, however, this may lead to a situation in which LDCs find accession easier than developing countries, as developing countries cannot avail themselves of the concessions that are only available to LDCs.

C Transitional Economies

The third significant category of non-members is transitional economics. As observed in above, the post-cold war environment was a catalyst for many new members of the CATT, and the flow of transitional economies seeking accession continued after the creation of the WTO. In a narrow sense, the term 'transitional economy' refers to a situation where a polity is undergoing change from a centrally planned economy to a decentralised economy based on market principles. Since countries first began acceding to the WTO in 1996, over two-thirds of the 30 new members have been transitional economies of Asia, central Asia and eastern Europe that are, or have recently been, states with centrally planned economies. Six of the current non-members are considered transitional economies by this definition: Uzbekistan, Azerbaijan, Belarus, Kazakhstan, Turkmenistan and Bosnia-Herzegovina. (59) This is the sense in which the term is generally used in a WTO context. (60)

In addition to the general issues described below, there are a number of accession obstacles that have a particular impact upon transitional economies. Reviewing the past accessions of transitional economies, it is clear that many legacies of central planning economies complicate the accession process. An OECD study lists the types of problems encountered by transitional states' implementation of WTO principles as including
  [F]requent changes in tariff and non-tariff measures,
  difficulties in customs valuation procedures used to
  counter under-invoicing problems, taxation schemes not
  based on national treatment, vestiges of state
  trading and exclusion from preferential
  arrangements. (61)


There is also a sense of uneasiness among incumbent WTO members about how economies traditionally dominated by the state-owned sector can be reconciled with the essentially neoliberal tenets underpinning the WTO. Part of this uneasiness can be attributed to perceptions--decades of the cold war created an entrenched narrative of the inherent 'difference' of the socialist system and subtle discourses of transitional economies that cannot easily be changed. (62) However, there are also tangible structural and institutional issues. Naray points out that, even though WTO membership is not inherently incompatible with state ownership, high levels of state ownership tend not to provide in practice the transparent environment that the WTO membership requires of acceding states. (63) Similarly, the OECD states:
  [T]he main insufficiency of new trade regimes in many
  transition economies, especially in the Newly
  Independent States (NIS), is their lack of
  transparency and predictability ... the unstable
  trade and investment framework is often accompanied
  by considerable discretionary powers given to
  governmental officials, thus increasing the risk of
  rent-seeking activities. (64)


This attitude towards transitional economies can manifest in the form of non-application of accession commitments. Article XIII(1) of the Marrakesh Agreement effectively provides members with a mechanism to opt out of recognising the accession of a new WTO member. Referred to in art XIII as 'non--application', the only obligation on the existing member is that it notifies its intention to the Ministerial Conference prior to the approval of the new member's accession. A parallel provision in art XIII(2) allowed non-application among original WTO members on entry into force of the WTO Agreements, provided that such a notification of non-application had previously been invoked under art XXXV of the GATT 1947. (65)

Since the creation of the WTO, transitional economies have been the only states subject to the non-application mechanism. It is also a powerful threat that can be applied at any time, even if negotiations have concluded. In fact, there is nothing preventing an incumbent member from negotiating bilaterally with an applicant, but subsequently invoking the non-application provision should interim promises not be met, or extra-mural trade-offs fail to be observed. While art XIII(2) has only been invoked (and subsequently revoked) in the case of Romania, (66) art XIII(1) has been used by Turkey in respect of Armenia (67) and by El Salvador in relation to China.68 It has also been invoked by the United States in the accession of many of the smaller transitional economies. Notifications in relation to Mongolia, (69) the Kyrgyz Republic, (70) Georgia, (71) Armenia, (72) Vietnam (73) and Moldova (74) were given and later revoked. In December 2012 the United States and the Russian Federation mutually revoked notifications in respect of one another. (75) The non-application threat is an extra form of pressure that can be leveraged against transitional economies to extract WTO-plus obligations, and the list above shows how frequently it has been used, particularly by the United States, in relation to transition economies.

Accession negotiations put substantial pressure on transitional economies to undertake systemic market-oriented reforms, far beyond the reforms specifically necessary to implement WTO obligations. Thus, while transitional economies share the capacity and resource issues encountered by LDCs, the primary challenge for them in accession is the burden of substantive changes required of their legal and economic systems. As Macrory and others observe:
  Since the easiest way to avoid problems associated
  with non-market economies is to encourage them to
  become market economies, the accession process puts
  pressure on countries to speed the transformation of
  their economies, although there are generally no
  specific requirements imposed beyond transparency and
  notification requirements in respect of privatization
  and pricing policies. (76)


In addition, WTO-plus obligations placed on transitional economies include more onerous reporting requirements; for example, Mongolia and Montenegro both undertook to report regularly to the WTO about progress in privatisation during accession negotiations and annually after accession. (77)

During the Doha Round, two negotiating proposals were put forward by a consortium of transitional economies on reforms to the system of domestic agricultural supports. One proposal noted the significance of agriculture for transitional economies, that the available blue box and green box subsidies were 'out of reach' and that reforms needed 'address the particular needs of Members that are in the difficult process of transformation to a fully fledged market system or consolidating the results of such a deep-going economic process in the agricultural sector'. (78) It involved raising the de minimis level for subsidies in transitional economies, as well as permitting the use of investment, interest, and input subsidies until the point that the subsidised sector reached a stated level of growth. A similar group of countries proposed negotiating guidelines and modalities for non-tariff barriers in relation to transitional economies. (79) Neither proposal was successful.

In other words, the barriers for entry into the WTO by transitional economy applicants are particularly high, both in terms of the demands made of the applicants, and in their ability to meet those demands. And yet, unlike LDCs, little has been done to address the needs of transitional economies in the WTO. There is also a misplaced sense that the accessions of China and the Russian Federation have completed the major negotiations for transitional economies, even though the membership of states with transitional economies is far from universal.

D Micro-States

The final notable category of non-members are commonly referred to as 'micro-states'--states with both small land area and small populations, and often (but not always) island states with low levels of development, referred to as Small Island Developing States ('SIDS'). (80) There is no precise definition of a micro-state, although it is usually considered to have a population of less than three million people. (81) In WTO parlance, the term 'small economy' is usually used.

In comparison with the categories detailed above, the micro-states are not uniform in their degree of economic vulnerability. A number of non-member microstates are both LDCs and SIDS--Tuvalu, Timor-Leste, Comoros, Sao Tome and Principe, and Kiribati--and in these cases their economic vulnerability and low-level of development is compounded by their geographical remoteness and small size. However, there is a group of non-members with a very different profile to those mentioned above. Monaco, San Marino, Andorra, and the Bahamas are all extremely high-income countries with small territories and extremely small populations--under 85 000 for the first three respectively, and under 350 000 in the case of the Bahamas. Each relies heavily on international trade in services, especially financial services. Their economic profiles set them apart from other non-members, and the decision of these states not to become members of the WTO seems to be due to concerns about liberalising their financial services sectors.

The Doha Declaration (82) has picked up on themes in the UN Millennium Declaration (83) and Target 8.0 of the Millennium Development Goals, which both explicitly acknowledge the 'special needs' of small island developing states. Paragraph 35 of the Doha Declaration gave the WTO the mandate to address 'the trade-related issues identified for the fuller integration of small, vulnerable economies into the multilateral trading system'. In response, the WTO formulated a Work Programme to identify how best to address their special needs, but resisted the creation of any new designation for special and differential treatment. (84)

A study of the impact of accession on Vanuatu provides insight into the particular accession difficulties faced by economically vulnerable micro-states. The financial and resource costs of the accession process are essentially fixed, regardless of the size of an acceding member. In other words, there is a proportionately much larger cost incurred for a small state to accede than a larger state. For example, Gay notes that the annual fee for observer status in the WTO constituted 14 per cent of the total operating budget for the Vanuatu Department of Trade. (85) The often remote location and small operating budget of a microstate's government mean that Geneva-based negotiations pose an excessive burden on the acceding state. The UNDP has noted that:
  [T]he costs of accession are often ignored, but for
  microstates they can be significant. Midway through
  accession the Vanuatu government estimated that
  administrative and travel costs related to accession
  were at least US$150,000 ... These funds came from
  the government budget rather than directly from
  donors. (86)


The same issues of scale filter through to the implementation of accession obligations as well. For example, a communication from SIDS to the WTO noted the additional costs to SIDS of running ports and customs services in accordance with WTO obligations, and the particular difficulties of having sufficient government capacity to make use of the Dispute Settlement System. (87)

V Common Accession Constraints and Challenges

In addition to die specific vulnerabilities outlined above, there are many obstacles common across all categories, which are set out briefly below, although each issue could itself form a discrete study in its own right.

The first type of common issue is resource constraints, and the WTO Secretariat noted that the process is demanding for acceding governments and that new members had reported the process to have been 'unduly long, inquisitorial and frequently repetitive'. (88) The process is administratively demanding, requiring the collation of many types of documents and the preparation of large dossiers of information about the trade regime and other things, including statistical information that may not have previously been collected. (89) There are also requirements to translate large amounts of information into one of the working languages of the WTO (French, Spanish or English), which is very costly and requires highly skilled personnel. (90) Similarly, the bilateral negotiation process is highly resource intensive and can take many years. For example, Samoa has been engaged in accession negotiations for nearly a decade, despite the negligible contribution of that country to the volume of trade globally. Comments by Samoa's Minister of Trade highlight the inherent power imbalance between the acceding member and the incumbent members in these negotiations:
  Samoa has found that the ongoing bilateral
  negotiations have stretched our financial and
  negotiating capacity to the limit. This has been
  exacerbated by the pressure exerted by some developed
  country Members of the WTO on Samoa to agree to some
  of their strenuous demands on market access on goods
  and services. (91)


Even for much larger and better-resourced states, the challenge remains immense. In the final meeting of the Russian Accession Working Party, the Russian delegate summed up the accession process in the following terms:
  The Report of the Working Party was an encyclopaedia
  of trade law from the Russian Federation and the
  Customs Union. According to the records of his
  Delegation, the Russian Federation had conducted
  several thousand rounds of negotiations. Hundreds of
  people had been involved in the process. It had been
  a remarkable school of practical trade policy. As in
  any living process, there had been mountains and
  valleys, hopes and disappointments, victories and
  defeats, dramas and, of course, comedies: (92)


Even in large, well-resourced, developed states, finding sufficient expertise to deal with WTO matters can be a challenge. For negotiations, diplomats need not only to be skilled in the negotiation process, but also to have advanced knowledge of WTO principles and how these are translated into a domestic regulatory context. They generally need to be fluent in English, and have sufficient skills to handle an extremely complex, multi-issue and high-pressured negotiating environment. In most developing economies, such expertise requires lawyers and economists to engage in postgraduate study at foreign institutions, and it is then very difficult to retain those staff in government positions as they are often in demand in more lucrative private sector positions.

The second category of common challenge is to resist the imposition by incumbent members of WTO-plus obligations. As noted above, accession practice has given rise to a sense of entitlement on the part of incumbent WTO members that they can push hard to extract as many concessions as possible from a new member, without reference to the types of concessions that they themselves made on membership. Conversely, Charnovitz observes that it is possible, but extremely rare, that an acceding member may impose a WTO-plus obligation on incumbent members as a condition of the accession, (93) but there is no sense of entitlement on the part of acceding states that such a demand could be made.

In fact, the bargaining position of acceding states is perceived to be such that many feel they cannot insist on being accorded their full entitlements under the WTO Agreements. The WTO Secretariat noted its own concerns that various types of special and differential treatment benefits were not being accorded to acceding states in accession negotiations, corresponding to Charnovitz's category of Applicant WTO-minus provisions. These occur particularly in relation to transitional periods, the de minimis exception in agricultural subsidies, consultations on balance of payments issues, and the application of the Decision on Net-Food-Importing Governments. (94)

The perceived legitimacy of WTO-plus demands by the incumbent members further compounds the difficulties of new members acceding to the WTO. While occasional questions have been raised as to whether these WTO-plus and WTO-minus obligations constitute some kind of abuse of power, the issue has not been widely pursued. (95) A delegation of SMS made the following submission to the WTO, lamenting the inability of the WTO's declarations to address the issue of WTO-plus obligations: [The] texts fail to address the main problem: the lack of basic rules governing the process and ensuring that it is fair and equitable. This is an anomaly in the WTO rules-based system that must be corrected. (96)

Overall, the picture painted of accession is that it remains a nearly impossible challenge for many current non-members. Procedural and substantive issues compound, virtually guaranteeing that accession will be a time-consuming and expensive process. While the WTO has acknowledged many of these difficulties, and various types of particular vulnerabilities, there has been no serious effort to make good on the ideal of universal membership.

VI Conclusion

This article has explored the aspiration of universal accession to the WTO, analysing first what is meant by the concept of universal accession and the potential WTO members that are excluded by the commonly used, UN-based definition. A broader interpretation of universal accession achieves two important purposes: it reveals the true extent of the 'accession issue' by showing the number of accessions that may be negotiated in future; and it highlights that the WTO's reliance on UN-based definitions, while often helpful, can at other times conceal valuable insights into the effect of WTO negotiations, concessions and commitments.

The definition of an LDC is one such example--while there is no doubt that ii is useful as an analytic shorthand, it becomes a focal point for reforms to the accession process and conceals the fact that many types of acceding states are disadvantaged by the process; not only LDCs, but also low-income countries, low-middle income countries, transitional economies and micro-states.

The accession successes of 2012 must not lead observers to underestimate the barriers to successfully completing the accession process. The procedural and substantive hurdles faced by most current non-members are substantial and wide ranging. Some, such as the need for better trade statistics, enhanced negotiating capacity and more specialised trade negotiators, can be remedied for the most part by greater levels of technical assistance to acceding states. However, other hurdles require a combination of restraint and institutional change on the part of current members. There must be a genuine shift in attitude that no longer considers onerous accession commitments to be the inevitable price paid for membership, and the focus of special and differential treatment should be broadened substantially.

Protection of vulnerable states in the WTO is necessary to protect the vulnerable populations they represent and, to paraphrase the words of Keohane, institutional protection at an international level from arbitrariness is equally important in global governance as it is in national governance. (97) While initiatives to support LDC accession are laudable, they are inadequate to genuinely promote universal membership.

(1.) See discussion at IVA below.

(2.) On the accession of the Russian Federation, see Anders Aslund, 'Why Doesn't Russia Join the WTO?' (2010) 33(2) The Washington Quarterly 49. On the accession of Vanuatu, see Roman Grynberg and Roy Mickey Joy, 'The Accession of Vanuatu to the WTO: Lessons for the Multilateral Trading System' (2000) 34(6) Journal of World Trade 167.

(3.) The term 'BRICs' is generally considered to have been coined by Jim O'Neill, Goldman Sachs Head of Global Economic Research, in 2001: sec Jim O'Neill, 'Building Better Global Economic BRICs' (Global Economics Paper No 66, Goldman Sachs, New York, 2001) Goldman Sachs <http://www.goldmansachs.com/our-thinking/archive/archive-pdfs/build-betterbrics.pdf>.

(4.) WTO, 'DDG; Yerxa Says APEC has Become "Forerunner" on New Trade Issues' (Press Release, 5 September 2012) <http://www.wto.org/english/news_e/news10_e/envir 26mar10_e.htm>.

(5.) WTO, 'WTO Welcomes Vanuatu as a New Member' (Press Release, 26 October 2011) <http://www.wto.org/english/news_e/news11_e/acc_26oct11_e.htm>.

(6.) A separate and important question, not canvassed in this article, is the extent to which the current accession process delivers benefits to acceding members. There are concerns about the onerous demands placed particularly on developing countries raised, fur example, by Oxfam. See Oxfam International, Make Extortion History--The Case for Development Friendly WTO Accession for the World's Poorest Countries (24 October 2005) <http://www.oxfam.org/en/policy/bp79-make-extortion-history>.

(7.) See, eg, Renato Ruggiero, 'The Multilateral Trading System at Fifty' (Speech delivered at the Royal Institute of International Affairs, 16 January 1998) <http://www.wto.org/english/news_e/sprr_e/london_e.htm>.

(8.) General Agreement on Tariffs and Trade, opened for signature 30 October 1947, 55 UNTS 187 (entered into force 29 July 1948) (GATT 1947').

(9.) Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) ('Marrakesh Agreement).

(10.) It is outside the remit of this article to engage with this question, but see, eg, Tzu-Wen Lee, "Me International Legal Status of the Republic of China on Taiwan' (1996-97) 1 University of California Las Angeles Journal of International Law and Foreign Affairs 351.

(11.) See Accession of the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matra, WTO Doc WT/L/433 (11 November 2001) (Decision of the Ministerial Conference).

(12.) Consolidated Version of the Treaty on European Union, opened for signature 7 February 1992, [2012] OJ C 326/15 (entered into force 1 November 1993) art 3(4).

(13.) The UN maintains a list of territories it considers to be non-self-governing, meaning that non-states not on the list can be considered self-governing, but not states.

(14.) The GATT procedures were primarily con tamed in Accession to the General Agreement Complementary Procedures to be Followed in the Organization and Pursuit of Negotiations, GAIT Doc L/7317 (27 October 1993) and Management of Accession--Statement by the Chairman of the Council, GATT Doc C/COM/4 (16 November 1994) GATT BISD 41S/32, which were consolidations of earlier practices.

(15.) Gerard Curzon, Multilateral Commercial Diplomacy The General Agreement on Tariffs and Trade and Its Impact on National Commercial Policies and Techniques (Michael Joseph, 1965) 36.

(16.) Management of Accession Negoliations--Statement by the Chairman of the Council GATT Document C/COM/4 (16 November 1994) GATT BISD 41S/32.

(17.) Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A ('General Agreement on Tariffs and Trade') ('GATT 1994').

(18.) Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1A ('General Agreement on Trade in Services') ('GATS').

(19.) Peter Van Den Bossche, The Law of the World Trade Organization (Cambridge University Press, 2005) 111.

(20.) Accession: Explanation: How to Become a Member of UPTO (2013) World Trade Organization <http://www.wto.org/english/thewto_e/acc_e/acces_e.htm>.

(21.) See, eg, WTO, WTO Ministerial Conference Approver China's Accession (Press Release, 10 November 2001) <http://www.wto.org/english/news_e/pres01_e/pr252_e.htm>.

(22.) Procedures for Negotiations under Artide XII, WTO Doc WT/ACC/1 (24 March 1995) (Note by the Secretariat) [4].

(23.) Maxine Kennett, Simon J Evenett and Jonathan Gage, Evaluating WTO Accession: Legal and Economic Perspectives (World Trade Institute, 2005) 33.

(24.) Accessions: Syrian Arab Republic (2013) World Trade Organization <http://www.wto.org/english/thewto_e/acc_e/al_syrian_arab_republic_e.htm> and Accessions: ban (2013) World Trade Organization <http://www.wto.org/english/thewto_e/acc_e/al_iran_e.htm>.

(25.) Procedures for Negations under Article XII, above n 22, [6], [9], Attachment 1.

(26.) Information to be Provided on Domestic Support and Export Subsidies in Agriculture, WTO Document WT/ACC/4 (8 March 1996) (Technical Note by the Secretariat).

(27.) Implementation of the WTO Agreement on Trade-related Aspects of Intellectual Property Rights WTO Does WT/ACC/9 and WT/ACC9.Corr.1 (15 November 1999) (Notes by the Secretariat).

(28.) Marrakesh Agreement Establishing the World Trade Organization, opened for signature 15 April 1994, 1867 UNTS 3 (entered into force 1 January 1995) annex 1C ('Agreement on Trade-Related Aspects of Intellectual Property Rights').

(29.) Information to be Provided on Policy Measures Affecting Trade in Services, WTO Doc WT/ACC/5 (31 October 1996) (Technical Note by the Secretariat).

(30.) Check List of Illustrative SPS and TBT Issues for Consideration in. Accessions, W11) Doc WT/ACC/8 (15 November 1999) (Note by the Secretariat).

(31.) This is an indicative list only. The full list is 22 pages long: see Procedures for Negotiations under Article XII, above n 22, Attachment 1.

(32.) Ibid [9], [10].

(33.) Constantine Michalopoulos, 'WTO Accession' in Bernard Hockman, Philip English and Aaditya Mattoo (eds), Development, Trade and the WTO: A Handbook. (World Bank, Washington, 2002) 63.

(34.) Kennett, Evenett and Gagel, above n 23, 44.

(35.) Procedures for Negotiations under Article XII, above n 22, [5].

(36.) Kennett, Evenett and Gagel, above n 23, 33-40.

(37.) Frederick Burke, 'Vietnam's WTO Accession' (Paper presented to the LawAsia International Trade Law Conference, Ho Chi Minh City, 28-29 September 2005).

(38.) Simon Lacey, 'The View from the Other Side of the Table: WTO Accession from the Perspective of WTO Members' (Paper presented at the Seminar on WTO Accession Issues for selected OIC Member Countries, Jeddah, Saudi Arabia, 28-29 March 2006) 2.

(39.) Anna Lanoszka, 'The World Trade Organization Accession Process' (2001) 35 Journal of World Trade 575, 584.

(40.) Marrakesh Agreement art XII (2).

(41.) Decision-Making Procedures under Articles IX and XII of the WTO Agreement Agreed by the General Canna, WTO Doc WT/L/93 (24 November 1995).

(42.) See Technical Note on the Accession Process, WTO Doc WT/ACC/10/Rev.3 (28 November 2005) (Note by the Secretarial) 39-40.

(43.) Ibid 43.

(44.) Steve Charnovitz, 'Mapping the Law of WTO Accession' (Working Paper No 237, George Washington University Law School, 2006) 20.

(45.) For the defining characteristics of an LDC, see UN Economic and Social Council, Report on the Sixth Session of the Committee for Development Policy, UN Doc E/2004/33, Supplement No 13 (29 March-2 April 2004) 15-16.

(46.) Note South Sudan is not currently included in this official list, although it has been recommended for inclusion subject: to us consent: see UN Committee for Development Report on the Fourteenth Session, UN Doc E/2012/33, Supplement No 13 (12-16 March 2012). In ails review it was also recommended that Vanuatu and Tuvalu be recommended for graduation from the list of LDCs. See also UN Conference on Trade and Development, The Least Development Countries Report 2011, UN Doc UNCTAD/LDC/2011 (2011).

(47.) See, eg, the technical assistance work of UNCTAD's Trade Negotiations and Commercial Diplomacy Branch <http://unctad.org/en/Pages/DITC/TNCD/Trade-Negotiations-and-Commercial-Diplomacy-.aspx>.

(48.) Marrakesh Agreement art XI (2).

(49.) Opened for signature 15 April 1994, 1915 UNTS 103 (entered into force 1 January 1996).

(50.) Opened for signature 12 April 1979, 1186 UNTS 170 (entered into force 1 January 1980).

(51.) UN Conference on Trade and Development, WTO Accessions and Development Policies, UN Doc UNCTAD/DITC/TNCD/11 (2001) xiii--xiv.

(52.) Zanzibar Declaration Meeting of the Miriam. Responsible for Trade of the Lead Developed Countries, WTO Doc WT/L/409 (6 August 2001).

(53.) Ministerial Declaration, A dopted on 14 November 2001. 4th sess, Ministerial Conference, Doha, WTO Doc WT/MIN(01)/DEC/1 (20 November 2001) ('Doha Declaration) [42].

(54.) Guideline for Accession Least-Developed Countries, WTO Doc WT/L/1508 (10 December 2002) (General Council Decision) ('2002 Guidelines').

(55.) Accession of Least-Developed Countries, WTO Doc WT/L/846 (17 September 2011) (Ministerial Conference Decision).

(56.) Accession of Least-Developed Countries Addendum, WTO Doc WT/L/508 (25 July 2012) (General Council Decision) (Revised Guidelines') 1.

(57.) The World Bank, Country and Lending Croups (2013) <http://data.worldbank.org/about/country-classifications/country-and-lending-groups>.

(58.) UN Development Program, Than Diagnostic Trade Integration Stiffly 2010 Report (Suva, 2011) 37.

(59.) International Monetary Fund, 'Transition Economies: An IMF Perspective on Progress and Prospects' (Working Paper No 00/08, 3 November 2000) <http://www.imf.org/external/np/exr/ib/20M/110300.htm>. Note Bosnia-Herzegovina is not included in this particular list, but is included in other analyses by The World Bank and the UN: see The World Bank, Transition--The First Ten Years: Analysis and Lessons for Eastern Europe and the Former Soviet Union (Washington, 2002).

(60.) Note that a secondary way the term 'transitional' is used is in a more generic sense to refer to states moving towards market-dominated economies, from either state-dominated economies or various types of 'market economy where patrimonial or patron-client relationships are widespread to a rules-based system of market relationships': Peter McCawley, 'The Indonesian Economy in Transition: The International Context' (Paper presented at Lessons from the Indonesian Transition: Setting a Future Reform Agenda, Jakarta, 24 February 2004) 5 <http://adbi.adb.org/speeches/2004/02/24/58.indonesia.economy>. By these broader definitions, nearly all current non-members would be considered transitional economies, including Afghanistan, Iran, Iraq, Lebanon and Syria.

(61.) OECD, Indicators of Tariff & Non-tariff Trade Barriers (Paris, 1997) 93.

(62.) See, eg, Lisa Toohey, 'Regarding China: Perceptions of China's First Decade in the WTO' (Paper presented at Conference of the Society of International Economic Law, Hong Kong, 14 July 2012).

(63.) Peter Naray, Russia and the World Trade Organization (Palgrave Macmillan, London, 2001).

(63.) OECD, above n 61, 10.

(64.) For the background to and rationale for art XXXV of GATT 1947, see Negotiating Group on GATT Articles--Article XXXI: Note by the Secretariat Document MTN.GNG/NG7/W/30 (6 November 1987) (Note by the Secretariat) GATT BISD 10/73, 74.

(65.) See Invocation of Article XIII.1 with Respect to Romania, WTO Doc WT/L/11 (27 January 1995), revoked pursuant to Invocation of Article XIII.1 with Roped to Romania: Withdrawal of Invocation by the United States (20 February 1997), WTO Doc WT/L/203.

(67.) Accession of the Republic of Armenia: Invocation by the Republic of Turkey of Article XIII of the Marrakesb Agrement, WTO Doc WT/L/501 (3 December 2002).

(68.) Accession of China: Invocation by El Salvador of Article Xiii of the Marrakesb Agreement, WTO Doc WT/L/429 (7 November 2001).

(69.) Accession of Megabit, Invocation by the United Slates of America of Article XII of the WTO Agreement, WTO Doc WTO Doc WT/L/159 (17 July 1996) and revoked pursuant to Withdrawal of the Invocation of Article XIII by the United States with Respect to Mongolia, WTO Doc WT/L/306 (8 July 1999).

(70.) Accession of the Kyrgyz Republic, Invocation by the United States of America of Article XIII of the WTO Agreement, WTO Doc WT/L/275 (12 October 1998) and revoked pursuant to Withdrawal of Invocation of Article XIII by the United States with Respect to the Kyrgyz Republic, WTO Doc WT/L/363 (20 September 2000).

(71.) Accession of Georgia, Invocation by the United States of Article XIII of the Marrakesh Agreement Establishing the World Trade Organization, WTO Doc WT/L/318 (1 October 1999) and revoked pursuant to Withdrawal of Invocation of Article XIII by the United States with Respect to Ceorgia, WTO Doc WT/L/31.45 (10 January 2001).

(72.) Invocation by the United States of Article XIII of the Marrakesb Agreement Establishing the World Trade Organizatio with Respect to the Republic of Armenia. WTO Doc WT/L//505 (10 December 2002) and revoked pursuant to Disinvocation by the United States of Article XIII of the Marrakesb Agreement Establishing the World Trade Organization with Respect to the Republic of Amenia, WTO Doc WT/L/601 (4 February 2005).

(73.) Invocation by the United States of Article XIII of the Marrakesb Agreement Establishing the World Trade Organization with Respect to Viet Nam, WTO Doc WT/L/661 (7 November 2006) and revoked pursuant to Withdrawal of Invocation of Article XIII by the United States with Respect to the Socialist Republic of Viet Nam, WTO Doc WT/L/679 (10 January 2007).

(74.) Invocation by the United States of Article XIII of the Marrakesb Agreement Establishing the World Trade Organization with Respect to Moldova, WTO Doc WT/L/395 (4 May 2001) and revoked pursuant to Withdrawal of Invocation of Article XIII by the United States with Respect to Madam, WTO Doc WT/L/879 (21 December 2012).

(75.) Invocation by the United States of Article XIII of the Marrakesh Averment Establishing the World Trade Organization with Raped lo the Russian Federation, WTO Doc WT/L/838 (16 December 2011), revoked pursuant to Withdrawal of Invocation of Article XIII by the United States with Respect to the Russian Federation, WTO Doc WT/L/877 (21 December 2012), Invocation by the Russian Valentino' of Article XIII of the Marrakesh Agreement Establishing the World Trade Organization with Respect to the United States, WTO Doc WT/L/838 (16 December 2011), revoked pursuant to Withdrawal of Invocation of Article XIII by the Russian Federation with respect to the United States, WTO Doc WT/L/878 (21 December 2012).

(76.) Patrick F Macrory, Arthur E Appleton and Michael G Plummer, 'Institutional Framework' in Patrick F Macrory, Arthur E Appleton and Michael G Plummer (eds), The World Trade Organization: Legal Economic and Political Analysis (Volume 1) (Springer, New York, 2005) 77.

(77.) See, eg, Communication from Mongolia--Privatization Program of Mongolia During 1997-2000, WTO Doc WT/ACC/MNG/12 (11 May 2001) and Report of the Working Part on the Accession of Montenegro to the World Trade Organization, WTO Doc WT/ACC/CCR/38 (5 December 2011) [33].

(78.) See, eg, WTO Negotiations on Agriculture: Domestic Support--Additional Flexibility fer Transition Economies, WTO Doc G/AG/NG/W/56 (14 November 2000).

(79.) WTO Negotiations on Agriculture: blanket Access--A Negotiating Proposal by Bulgaria, Czech Republic, Estonia, Ceorgia, Hungary, Kyrgyz Republic, Latvia, Slovak Republic, Slovenia, Croatia and Lithuania, WTO Doc G/AG/NG/W/57 (14 November 2000).

(80.) In this article, the category of 'micro-states' is not used as a term of art, in the sense that the comments apply equally to 'micro-polities' or 'micro non-states that are capable of WTO accession.

(81.) See Harvey Armstrong and Robert Read, 'The Phantom of liberty: Economic Growth and the Vulnerability of Micro-States' (2002) 14 Journal of International Development 1, 13.

(82.) Doha Declaration, above n 53.

(83.) GA Res 55/2, UN GA0R, 55th sess, 8th plen mtg, Agenda Item 60 (b), UN Doc A/Res/55/2 (18 September 2000).

(84.) Work Programme on Small Economies--An Approach to Framing Responses to the Trade-Related Problems of Small Economies WTO Doc WT/COMTD/SE/W/13/Rev.1 (27 May 2005) (Revision).

(85.) Daniel Gay, Vanuatu's Suspended Accession Bid: Second Thoughts? World Trade Organization <http://www.wto.org/english/res_c/booksp_e/casestudies_c/casc43_e.htm#fnt13>.

(86.) UN Development Program, above n 58, 64-5.

(87.) Work Programme on Small Economies, above n 84.

(88.) Technical Note on the Accession Process, above n 42, 5.

(89.) Michalopulos, above n 33, 62.

(90.) Procedures for Negotiations under Article XII, above n 22, [9].

(91.) Samoa: Statement by the Honourable Hans Joachim Keil, Minister of Trade, WTO Doc WT/MIN(03)/ST/155 (13 September 2003).

(92.) Summary of the Thirty-First Meeting of the Working Party on the Accession of the Russian Federation, WTO Doc WT/ACC/RUS/71 (18 November 2011).

(93.) Charnovitz notes that there is at least one example of WTO-plus obligations imposed by an accessant on the incumbents in the case it Taiwan, preventing incumbents from enforcing certain types of exchange rate contracts in its own territory.: see Charnovitz, above n 44, 21-2.

(94.) Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-Importing Countries, WTO Doc LT/UR/D-1/2 (15 April 1994).

(95.) Technical Note on the Accession Process, above n 42.

(96.) Accession to the WTO--Communication from Antigua and Barbuda, Barbados, Cuba, Dominica, Grenada, Jamaica, Mauritius, Papua New Cuinea, Solomon Islands, St Kitts and Nair, St Vincent and the Grenadines, WTO Doc WT/COMTD/SE/W/17 (18 October 2005).

(97.) Robert Keohane, 'Governance in a Partially Globalized World' in David Held and Anthony McGrew (eds), Coverning Globalization: Power, Authority, and Global Governance (Polity Press, 2002) 326.

LISA TOOHEY *

* Senior Lecturer, Faculty of Law, University of New South Wales.
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