General Issue: Vol. XIII, No. 2 (Winter ’21)

-

Least-Developed Countries (LDCs) are a special group of countries defined by the United Nations (UN) as countries with low levels of per capita income and low levels of human development along with structural handicaps. As a result, they benefit from specific international support measures to integrate them into the global economy.

Trade is one of the key areas where LDCs are accorded special treatment. The World Trade Organization (WTO) recognises the LDCs in its Agreements and provides favourable treatment to them over and above other developing countries. At present, there are forty-six LDCs out of which thirty-five are WTO Members and another eight are negotiating their accession to the WTO.

The multilateral trading system has contributed to the economic growth and development of many developing countries. It has taken several important steps to enhance LDCs’ beneficial and meaningful integration in global trade. Decisions have been taken to ameliorate their export opportunities as well as to provide them sufficient policy space to integrate WTO rules and disciplines. At the same time, greater efforts have been made to build trade capacity in these countries so that they can harness the gains from trade. Yet, LDCs remain marginal participants in world trade. The COVID-19 pandemic has further accentuated the vulnerabilities of this group of countries and their share has not seen any discernible improvement over the last two decades.

This article provides a critical account of the measures taken in favour of LDCs in the multilateral trading system. It first looks at the participation of LDCs in world trade. Thereafter, it provides an account of the decisions taken in WTO both on market access as well as on policy flexibilities and the extent to which they have benefitted the LDCs. Capacity building as well as institutional efforts to increase the participation of LDCs in both negotiations and in building supply-side capacity has also been addressed. It concludes that targeted and concerted efforts are required from WTO Members as well as from the broader international community to foster growth through trade and to put them on the path of sustainable development.

This paper explores how the international trading system can help achieve sustainability worldwide. It aims to do three things: first, an explanation of how the international trading system (multilaterally, regionally, or bilaterally) helps and contributes to the achievement of the 2030 Sustainable Development Goals (2030 SDGs); second, an analysis of the role of free trade agreements (FTAs) in the energy transition, by focusing on small Pacific island developing states; and third, an exploration of how trade law is the enforcer of climate change obligations from the perspective of the states of the Caribbean Community (CARICOM).

This article looks at the food policy decisions taken in times of national or global food shortages. It finds that food security policy changes follow their own logic regardless of their impact on food prices and food availability, or their compatibility with World Trade Organization (WTO) Law or United Nations (UN) Conventions. Basically, governments that try to feed consumers without hurting their own producers are bound to manage imports, exports and food reserves acting as a price stabilisation measures. Regulators prefer scaling-up of social safety nets to public-private partnerships — regardless of WTO market access rights of foreign suppliers, let alone the Right to Food of foreign cash crop producers and food-insecure consumers. Unfortunately, no lessons were learned from the breakdown of the Doha ‘Development’ Round negotiations during the first global food crisis (2007–09). The new WTO rules and disciplines were largely ignored at the time. They were disregarded again at the beginning of the COVID-19 pandemic when agri-food trade broke down frequently and prices soared. Yet, trade negotiators keep calling for ‘more of the same’ WTO rules and lower subsidy limits – applicable mainly to other Members. Worse, on-farm greenhouse gas emissions continue increasing without any formal commitments to climate change mitigation measures — without a WTO discussion on the discriminatory nature of most climate footprint reduction measures. The impression prevails that food security always takes a back seat. The article concludes that the export bias of the multilateral trading system works against global food security: it prevents agrifood trade from playing its crucial role in the overriding challenge of feeding ten billion people sustainably by the year 2050.

Fisheries subsidies negotiations in the World Trade Organization (WTO) were launched in 2001 under the Doha Round. The negotiations are primarily aimed at preserving environmental sustainability, by seeking to prohibit harmful fisheries subsidies that may contribute to over-exploitation of marine resources or may support Illegal, unreported and unregulated (IUU) fishing. The negotiations have traversed a long journey with several missed deadlines. The United Nations Sustainable Development Group (UNSDG) Target 14.6 adopted in 2015 gave impetus to conclude these negotiations by 2020. Additionally, appropriate and effective special and differential treatment (S&DT) for developing countries and Least Developed Countries (LDCs) has also been an integral part of these negotiations. As the negotiations approach the finish line towards the forthcoming WTO Ministerial meeting to be held from November 30, 202 to December 3, 2021, negotiations are at a frantic pace to conclude.** Several contentious issues remain to be resolved viz. treatment of non-specific fuel subsidies; what should be the approach to prohibit subsidies which contribute to overcapacity and overfishing; what should be the S&DT for developing countries; dispute settlement, etc. The new fisheries subsidies instrument will have an interface with the existing framework of international agreements, conventions, and instruments which govern the marine resources or deal with maritime jurisdiction or rights of coastal states under the United Nations Convention on the Law of the Sea (UNCLOS). This article attempts to examine the challenges the negotiators have faced in crafting the new disciplines with an attempt to find a balance between the rights and obligations of Members under existing international instruments on fisheries and the new obligations that will emerge from the disciplines. It is a tight rope walk for Members to conclude the final phase of these negotiations.

International law is a colonial and anti-developmental machine, which has managed to represent itself as an anti-colonial, pro-development project over the course of a few short decades. Many progressive lawyers, and other people of good will, have bought into that image created by international law in the period from 1950 to 1980, where it served ambivalent and occasionally pro-developmentalist functions. This era was a blip in the five-hundred-year history of public international law (PIL), and it has ended. PIL has resumed its colonising mission, but quietly and invisibly. Remarkably, it has done so while maintaining the myth of its own anti-colonialism.

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the underdeveloped states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to be noble and just, but is ostentatiously weak; the other is ignoble and exploitative, but quietly powerful. They work in tandem with one another; the first functions by appearing to fail, the second operates so quietly that its very functioning is overlooked — hidden behind the spectacular failure of its partner. These are usually analysed as PIL and IEL, respectively. I call them Harry Potter and the Gluttonous Machine.

In the GATT era, the GATT Contracting Parties sought to justify their measures under security exceptions, but these exceptions were never interpreted in a dispute before a GATT panel. Consequentially, there was not adequate guidance concerning the interpretation of the security exceptions provisions. However, with the recent Panel Reports in the WTO disputes Russia – Traffic in Transit and Saudi Arabia – IPRs, the panel interpreted the security exceptions provisions for the first time. This will have a lasting effect on the WTO dispute settlements mechanism. But apart from the WTO agreements, these rulings will also have implications on the interpretation of security exceptions provisions incorporated in the FTAs entered into by the WTO Members. In the FTAs, the Members have adopted distinct approaches to the WTO security exceptions and modified them through the addition of new grounds for their invocation or making stipulations as to their self-judging nature. Similar trends have been followed in the Indian FTAs as well. But, while more and more FTAs incorporate language divergent from the WTO provisions to address issues concerning the grounds for their invocation and justiciability, there is little understanding of how and why this divergence is occurring. The recent Panel Reports are also going to affect this trend of divergence. Against this background, this article assesses the debate concerning security exceptions and the implication of the recent Panel Reports on them, specifically the WTO dispute of Saudi Arabia – IPRs. Further, the article analyses the approaches towards security exception provisions across FTAs with a specific emphasis on the Indian FTAs. Finally, the Article concludes by identifying the way ahead.