Research on the Review Mechanism of Regional Trade Agreements
Since 1990s,especially since the establishment of WTO,the domino effect and spaghetti bowl of the regional trade agreements occurred as a result of the rapid development of the regionalism.Furthermore,a debate as to whether the regionalism is the supporting block of the multilateralism or the stumbling block is in the air.Nevertheless,there is no evidence to show that the proliferation of the RTAs will be curbed.According to the WTO statistics,up to December 2008,the number of RTAs that have been notified to GATT/WTO amounts approximately to 421,of which 230 RTAs are effective.Compared with the tremendous vitality of the RTAs,the review of the RTAs is powerfully weak.In the history of the examination of RTAs,only four of the examinations have generated decisions after the review,though the provisions of GATT1947 stated clearly that customs unions(CUs) and free trade areas(FTAs) shall be notified to the GATT Council which shall conduct the examination.Furthermore,of the four examinations,three were made in the first few years after the establishment of GATT.Actually none of the three examined RTAs satisfied all of the requirements of GATT ArticleⅩⅩⅣ.After the establishment of WTO,although the committee of regional trade agreements(CRTA) was built to carry out the review of RTAs,up to today none of all the examinations of RTAs have come up with any reports.Consequently,the criticism of RTAs review is on the rise.Some people think the review is powerless,others say the review mechanism is just for show.With regard to the conflict between the rapid development of the RTAs and review of the RTAs,this dissertation believes that to prevent the most-favored-nation treatment(MFN) from becoming an exceptional provision under WTO,to prevent the Balkanization of the multilateralism,importance must be attached to the construction of the system of the RTAs review,so as to make the review mechanism powerful enough to regulate the development of the RTAs,and make them consistent with the WTO law,and finally fulfill the goal of the RTAs,ie.to facilitate the trade among the contracting states of the RTAs,and not to raise the trade barriers with the states out of the RTAs.RTAs review mechanism is an issue whose dimension includes plutonomy,law,regional economic cooperation,international trade,and international economy and politics.The research of the RTAs review of this dissertation lies in two aspects.One is the review of RTAs under under WTO,the other being the review held by the individual RTAs themselves.The review under the WTO law constitutes the main part the RTAs review system,hence the heavy weight of this research.Based on the basic issues of the RTAs revies,this dissertation provides a research and study of the subjects,objects,standards,and the approaches of the examination of RTAs under WTO.As a supplementary of the review system under WTO,the individual RTAs shall be subject to the internal examination.Therefore,in addition to the examination of RTAs under GATT/WTO system,the dissertation designs a separate chapter to analyse the review system held by the individual RTAs themselves.As for the internal review of the RTAs,there exist the super state judicial review system,the dispersive review system, and the diplomatic review fulfilled according to the principle of consultation.With respect to the practice of China,a good knowledge of the review provisions and the mechanic requirements is very important for China to participate in the construction of the regional economic integration,because apart from the performance of its obligation under WTO,China has clearly stated that participation in regional economic integration is a foreign trade policy.Therefore,the discussion of the RTAs review system tries to connect the practice of China with the review system of the RTAs.This dissertation is divided into six chapters,the summary of which is as follows:ChapterⅠdescribes the basic issues of the review of the RTAs.Based on the discrimination of the RTAs to the non members,this chapter asserts that the inward trade diversion and investment diversion,and the outward diversion of trade remedy measures will surely impact the MFN,hence the significance of the reinforcement of the RTAs review system.Another basic issue included in this chapter is the concept of the RTAs.In accordance with the provisions of GATT ArticleⅩⅩⅣ,GATS ArticleⅤand the enabling clause,this chapter defines the RTAs as the CUs or FTAs or the interim agreements leading to the formation of CUs or FTAs,the economic integration agreements(EIAs) in the area of services, and the RTAs formed among the developing countries.These RTAs constitute the objects of the review system.From the legal perspective,this dissertation suggests that the review of the RTAs may fall into the following three groups,ie,the ex ante review,periodical review,and interim review.All of these reviews were carried out by the working group in the GATT1947, and were transferred to the CRTA since the establishment of WTO.In addition,the dispute settlement bodies(DSB) of WTO also play an important role in the review of the RTAs.The principal purpose of the review undertaken by the administrative institutes and dispute settlement bodies is to make the RTAs consistent with the provisions of WTO law.However, the object has not yet been realized.ChapterⅡfocuses on the review of the RTAs undertaken by the working group and CRTA.In the review system of the RTAs,the review by the administrative institutes is the foundation of the review system.The administrative institutes,who are responsible for the majority of the review of the RTAs,usually make decisions from the political or diplomatic perspectives.The decision making through concultation directly impacts the result of the review.Based on a trace of the representative cases of the RTAs review from GATT1947 to WTO,this chapter offers a discussion about the history,fundamental principles,and the validity of of the decisions made by the working group and CRTA.Apart from the study of the review of the traditional CUs and FTAs,this chapter provides an analysis of the review of EIAs and RTAs among the developing countries.The research in this chapter shows that the reports created by the examining institutes are just records without decision.ChapterⅢis about the review of RTAs held by the panels and appellate bodies.The examination of RTAs undertaken by the DSB of WTO is also the jurisprudence to supervise the RTAs.This kind of review is regarded as the judicial review of RTAs.With a retrospection of the unsuccessful review of the EC Banana CasesⅠandⅡunder GATT by the panel,this chapter focuses on the automatic and compulsory legal review undertaken by the DSB of WTO.According to the principle of jurisdiction ratione materiae and jurisdiction ratione personae,the provisions of ArticlesⅩⅩⅡandⅩⅩⅢ,and on the basis of the cases such as Turkey--Restrictions on Imports of Textile and Clothing Products,United States-Definitive Safeguard Measures on Imports of Wheat Gluten,and Argentina-Safeguard Measures on Imports of Footwear,this chapter discusses the complete procedures of the judicial review and the issues related to the provisions of GATT ArticleⅩⅩⅣand GATS ArticleⅤ.In this part, the paper attempts to illustrate that although the judicial review of the RTAs is a supplement to the political review,problems such as the gap between the legal provisions and the operation should be resolved.ChapterⅣfocuses on the standards of the RTAs review.Whether the nature of the RTAs is about goods or services,as the exceptions of the MFN,all the RTAs or EIAs should satisfy the necessary conditions.These conditions constitute the standards to guide the review of RTAs.The standards may be divided into two groups,i.e,the substantive standards and the procedural standards.As for the substantive standards,this chapter provides a detailed discussion of three requirements---the teleology of the RTAs,substantively all the trade,and not on the whole higher or more restrictive than.As for the procedural standards,this chapter offers an analysis of the notification and transparency of the review system.Stress is attached to the discussion of transparency due to its importance in the examining process.After studying the relevant documents of WTO and its practice of review,this chapter suggests that although the interpretation of the requirements has to some degree unified,there still exists much divergence to be solved among the WTO members.ChapterⅤdescribes the review of the RTAs held by the individual RTAs themselves. From a larger scope,the review of the RTAs shall not just refer to the examination undertaken under WTO,but also include the review conducted by the organizations of the individual RTAs,which will also play an important role in the supervision of the RTAs.As a supplement to the review system under WTO,ChapterⅤprobes into the review finished within the RTAs themselves,which may be classified as the super state judicial review system of EC,the dispersive review system of NAFTA,and the weak self review system among the developing countries.The study of the different types of self review is based on the legal provisions, procedures and validity of the review.Furthermore,this chapter analyses the reviewing practice of the RTAs with China as a contracting state.The findings of the study show that for different purposes some of the RTAs that China entered even almost have no provisions of the review system.But the RTAs between China and the developed countries include relatively improved reviewing rules.ChapterⅥattempts to study the improvement of the review mechanism of the RTAs. The study and research of the first five chapters has indicated that there exist many problems of the review system.Based on the practice of GATT/WTO,and guided by the general principles of the international public law and international economic law,this chapter suggests that the reform of the RTAs review system should be underlied by the clarification and improvement of the legal provisions.Based on the pragmatism and legalism,the author thinks the failure of the current review system is partially due to the unbalance between the political review and legal review.Therefore,with the guidance of the hard law and soft law,this dissertation suggests that since the review system based on the consultation practice may not be completely changed,supplementary reform of the review system may be introduced to improve the effect and validity of the review.The supplementary measures include decision making by vote,the negative voting decision making,the experience of the TPRM,and the establishment of the independent oversight organization.With respect to the Chinese practice, this chapter suggests that China should,as a developing country,deeply study the RTAs rules of WTO.Furthermore,China should also take its economic and political system into consideration,and accordingly balance its strategies to establish the RTAs with developing countries and the policy to construct the RTAs with developed countries.