The WTO and developing countries: The missing link of international distributive justice
Student thesis: Doctoral Thesis
This thesis demonstrates that no international distributive justice mechanism is operative in the World Trade Organization legal regime, and that SDT and GSP provisions do not compensate for this. It argues that the erga omnes partes distribution of the burden of compliance with WTO Agreements frustrates the economic development of the poor developing countries, and that this can be corrected by the distribution of the burdens of compliance on a distributive justice principle. A model climate law is advanced to demonstrate the practicability of applying that principle in the WTO context. The general charge is made that, absent a distributive justice principle in the WTO legal system, developing countries benefit from WTO Agreements only in the measure that they are already trade-capable, and that those Agreements often threaten their established wealth-producing institutions. It is argued that the status ‘developing countries’ cannot remain a self-designated status, but should correspond with GDP status. Specific charges are levelled against WTO Agreements’ failure to take account of the interests of developing countries: TRIPs provisions severely restrict the transfer of technology, and thereby frustrate emerging pharmaceutical industries; the DSM, based on Western legal tradition, imposes a burden of unfamiliarity on developing countries, and its enforcement system is generally not available to them; the GATS tolerates the friction between NT and MFN obligation and FTAs; the GATS and the TRIMs confer the right of one country to invest in another, in the absence of any validating customary international law, yet no WTO Agreement brings foreign-investment dispute settlement into the DSM, leaving the WTO tolerant of BITs and FTAs that nominate non-WTO tribunals for that purpose, despite evidence that many developing countries cannot sustain the financial penalties these tribunals impose.
1.15 MB, PDF document