The WTO legality of the EU's GSP+ arrangement Dr Lorand Bartels ...

developing states 66 or landlocked developing countries. 67 Both of these categories figure inthe UN Millennium Development Goals 68 and are taken up in the UN Secretary-General’s2001 ‘Road Map’ on the implementation of these goals. 69 Though the ‘Road Map’ does notmake specific reference to trade preferences, it does consider one means of ‘moving forward’to be ‘[e]nsuring progress towards a special and differential treatment of small islanddeveloping States in the financial and trade-related spheres’. 70 Indeed, even the originalEuropean Commission Communication setting out the guidelines for the new GSP regimerecognised this as an appropriate distinction between developing countries. It stated that ‘theGSP should focus on the countries most in need, such as the LDCs and the most vulnerabledeveloping countries (small economies, land-locked countries, small island states, and lowincome countries) in order to help them play a greater role in international trade’. Havingacknowledged this, however, the Commission’s solution was, somewhat illogically, tograduate other countries from the normal GSP program, rather than by adding the speciallyaffected countries to a more favourable GSP+ arrangement. 71None of this is to say that it is necessarily simple to devise a GSP+ program that wouldrespond appropriately to the particular needs of such countries (though market accessequivalent to that granted to least developed countries would be a useful starting point). Inprinciple, though, it would seem that such an approach would be more likely than the EU’scurrent arrangement to conform to the Appellate Body’s ruling in EC – Tariff Preferences.AnnexConventions referred to in Article 9 of the EU GSP RegulationCore human and labour rights UN/ILO Conventions1. International Covenant on Civil and Political Rights2. International Covenant on Economic, Social and Cultural Rights3. International Convention on the Elimination of All Forms of Racial Discrimination4. Convention on the Elimination of All Forms of Discrimination Against Women5. Convention Against Torture and other Cruel, Inhuman or Degrading Treatment orPunishment6. Convention on the Rights of the Child7. Convention on the Prevention and Punishment of the Crime of Genocide66 For a comprehensive discussion, though without linking this to GSP programs, see Barbara vonTigerstrom, ‘Small Island Developing States and International Trade: Special Challenges in the GlobalPartnership for Development’ 6 Melbourne Journal of International Law 402 (2005).67 The United Nations Office of the High Representative for the Least Developed Countries,Landlocked Developing Countries and the Small Island Developing States (UN-OHRLLS) wasestablished by the UN General Assembly in 2001: see http://unohrlls.expressiondev.com/en/about/(visited 25 July 2007).68 UN Millennium Declaration, UN Doc A/RES/55/2, adopted 18 September 2000, paras 17-18.69 United Nations, Road Map towards the Implementation of the United Nations MillenniumDeclaration, Report of the Secretary-General, UN Doc A/56/326, 6 September 2001, Goal 8 Target 14.70 Ibid, para 155. The Road Map makes no similar recommendation for landlocked developingcountries (paras 156-7). This is not entirely easy to understand, given that the increased transport costsof these countries, which is mentioned by the report, affects their development, and would seem to beappropriately addressed by trade preferences: see eg WTO Cancun Ministerial Conference, Paragraph18 of the Draft Ministerial Text (JOB(03)150/Rev.2), Small Economies, Joint Proposal by LandlockedDeveloping Countries, WT/MIN(03)/W/23, 14 September 2003; and Third Party Written Submissionof Paraguay to the Appellate Body in EC – Tariff Preferences, 30 April 2003, para 26, available atwww.acwl.ch (visited 25 July 2007).71 European Commission, COM (2004) 461, above at n 4, para 6.213