34 - Domestic framework for making and enforcing policies

Summary

ABSTRACT

A core objective of accession results is to establish a legal foundation for the conduct and management of trade policy based on the rule of law. Implementation of accession commitments hinges on the existence of an effective domestic framework for making and enforcing policies. Customarily, this is described in the third chapter of working party reports. Twenty-eight of the members that acceded pursuant to procedures in Article XII of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), have undertaken a total of fifty-five accession-specific commitments in this regard. The uniquely definable pattern that has emerged from WTO Accession Protocols confirms the uniform applicability of the WTO Agreement throughout and across the entirety of the customs territory of the new member, the exclusive authority of central governments to implement and enforce WTO rules, the strengthening of due process and the rule of law, and the precedence of ratified international treaties over domestic legislation, in many instances. These commitments are integral to the WTO Agreement and are enforceable under the WTO Dispute Settlement Understanding. Although normative and standard, they confirm the long-standing accession practice that a range of original members have not confirmed and from which several deviate. This chapter studies the specific accession-specific commitments in the domestic framework for making and enforcing policies. It also investigates the relationship between Accession Protocols and domestic legal systems and asks whether original members undertook similar obligations.

The WTO Agreement and the Domestic Framework for Making and Enforcing Policies

Accession commitments are to be implemented, in most cases, upon accession. In practice, implementation takes place through the amendment and/or enactment of legal instruments, which are, in turn, applied and enforced by designated authorities. Article XVI:4 of the Agreement Establishing the World Trade Organization WTO Agreement provides that ‘Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements’.

Nevertheless, the WTO Agreement does not provide instruction as to the architecture necessary to comply with Article XVI:4. Hence, each member enjoys the sovereign right to design its domestic institutions and processes. Different agreements establish the standard on how this should be effected.