Developing countries and decision-making in the WTO: reconciling the principles of special and differential treatment and sovereign equality of states

This study explores the issue of decision-making in international organisations with a view to providing a lens on the status of developing countries within the World Trade Organisation (WTO), with particular emphasis on their participation in WTO decision-making. The two main principles that form the theoretical lens or framework through which the research is being conducted are, (i) the principle of special and differential treatment of developing countries; and (ii) the principle of sovereign equality of states. The issue of economic development in developing countries and the role that trade could play is one that has taken centre stage in a lot of international fora for some time now. The need to replace economic aid from developed countries with market access opportunities that allow developing countries to be integrated better into international trade is one of the most central issues in international trade. The ‘aid for trade’ debate has culminated in the current Round of multilateral trade negotiations being christened the ‘Development Round’ because of the focus on the development and trading needs of developing and least developed country Members of the WTO. Special and differential treatment of developing countries is one of the main tools that the General Agreement on Tariff and Trade 1947 (GATT)/WTO system has used in the bid to integrate developing countries better into the international trade system. The adequacy and implications of using special and differential treatment as such a tool for integration is a central theme of enquiry in this research. It needs to be stressed at the outset that integration here is not viewed merely as an increase in contribution to international trade, but most importantly, as the ability to influence the policy direction of the WTO in a way that is favourable to the development aspirations of developing countries. Effective participation of developing countries in WTO decision-making thus becomes the foundational line of enquiry. The second theoretical aspect that forms the framework for this research – the principle of sovereign equality of states – is also employed in the enquiry into the participation of developing countries in the WTO because it is one of the fundamental principles of international law which regulates relations among states. The notion that the existence of a state must not be based on, inter alia, the military or economic power it wields to assure its existence and prevent interference from other states, has evolved over the centuries and is enshrined in the United Nations Charter. States are deemed equal just by their status as states under international law. The WTO Agreement makes provisions that ensure the operation of sovereign equality of states. For example, the decision-making bodies of the WTO are open to all Members and each Member, independent of contributions to international trade or population size, has one vote when decisions are being taken. The operation of this principle is thus important to the participation of developing countries in the WTO decision-making process. However, if states are equal, what justifies the special and differential treatment of developing countries, and why should developed countries provide such special treatments exclusively to developing countries? The seeming contradiction between these two principles is explored, and one important concept used in articulating this is the principle of state consent – that is, as sovereign states, developed countries provide special and differential treatment to developing countries by their own volition or consent, and not out of compulsion. Sovereign equality does not prohibit the expression of state consent even if such consent is exercised in a manner that limits state sovereignty. Also, where special and differential treatment provisions become ineffective in integrating developing countries into the international trade system, the principle of sovereign equality can be used to foster effective participation in decision-making so as to influence the direction of WTO policy in a way that is favourable to the trade interests of developing countries. Consequently, with regards to the participation of developing countries in international trade, special and differential treatment and sovereign equality of states can be seen as complimentary principles that can aid developing countries in their aspirations