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Published online by Cambridge University Press: 21 July 2009
The principles of classical international economic law, as it developed during the 19th and the first part of the 20th century, were based upon the three fundamentals of freedom, legal equality, and reciprocity. UNGA resolutions 3201(S-VI) and 3281(XX1X) of 1974 embody the legal principles upon which a new international economic order (NIEO) should be based. These principles in their turn are based upon the three N1EO fundamentals of protection of the economic interests of developing countries, preferential treatment of developing countries, and non-reciprocity in the relationship between developed and developing countries. The present study investigates to what extent these three NIEO fundamentals have become implemented in the legal practice of a notorious classical institution, the GATT, and have thereby passed the border between UNGA recommendations and binding law. It concludes that, although GATT practice reveals a substantial effort to give implementation to the NIEO fundamentals, so far it has provided developing contracting parties with only few true preferential rights.
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2. B.V.A. Röling, International Law in an Expanded World 15 (1960); Cf. also P.C. Jessup, The Use of International Law 20 (1959); C.H. Alexandrowicz, An Introduction to the History of the Law of Nations in the East Indies, 224 (1967); R.P. Anand, New States and International Law 14 (1972); R. Higgins, Conflict of Interests, International Law in a Divided World 12 (1965); B.V.A. Röling, supra note 1, at 205–207.
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4. Cf. R. Higgins, supra note 2, at 39; Cf. also P.C Jessup, supra note 2, at 96.
5. Cf. League of Nations Covenant Art 22; United Nations Charter Art 73.
6. The original text of the GATT is found in 55 U.N.T.S. 194 et seq..
7. B.V.A. Röling, Europees Volkenrecht of Wereldvolkenrecht? (European Law of Nations or Global Law of Nations?, in Dutch, 1957/1958). Reproduced in B.V.A. Röling, supra note 1, at 212.
8. B.V.A. Röling in his preface to W.D. Verwey, Economic Development, Peace, and International Law IX–X (1972).
9. Declaration on the Establishment of a New International Economic Order, G.A. Res. 3201 (S–VI), 6 U.N. GAOR Supp. (No. 1) at 3, U.N. Doc A/89559 (1974).
10. G A Res. 3281 (XXIX), 29 UN. GAOR Supp. (No. 31) at 51, U.N. Doc. A/9631 (1974).
11. Verwey, W.D., The Principle of Solidarity as a Legal Cornerstone of a New International Economic Order, 2 Hellenic Review on International Relations 59 (1981).Google Scholar
12. Verwey, W.D., The Principle of Preferential Treatment for Developing Countries, in: UN Doc.UNTTAR/DS/5 (1982), at 9.Google Scholar
13. GATT, Basic Instruments and Selected Documents (hereinafter referred to as BISD), 3rd Suppl.(1955), at 79.
14. When GATT documents refer to the Contracting Parties (with capitals), the total of “the contracting parties acting jointly” is meant. Cf. Art. XXV. 1.
15. According to Jackson, the terms ‘less-developed’ and ‘developing’ contracting parties are identical.Cf. J.H. Jackson, World Trade and the Law of the GATT 650 (1969); As to the legal problems raised by the absence of a generally recognized definition of the term ‘developing countries’, Cf. W.D. Verwey, The Impact of Organic Proliferation Within the United Nations System on the Emergence of a Preferential Legal Status of Developing Countries, Hague Academy of International Law/United Nations University Workshop on ‘The Adaptation of Structures and Methods at the United Nations’ 1985, at 193 et seq.(1986).
16. GATT Decision L/4897 of Nov. 28, 1979, BISD 26th Suppl. (1980), at 209–210.
17. The term ‘entitlement’ is used here as a generic term, comprising both ‘rights’ and ‘privileges’ or ‘expectations’. On the legal meaning of these terms see infra note 43.
18. BISD 26th Suppl. (1980), at 56 et seq..
19. BISD 8th Suppl. (1960), at 110.
20. BISD 12th Suppl. (1964), at 48; Cf. also the Resolution of the Trade Negotiations Committee, Meeting at Ministerial Level, of May 6, 1964, in BISD 13th Suppl. (1965), at 111.
21. Proceedings of the UN Conference on Trade and Development, Geneva March 23 – June 16, 1964, Vol. I: Final Act and Report (UN Doc. E/Conf. 46/141) Annex A. 1.1.
22. Cf. Petersmann, E.U., International Governmental Trade Organizations – GATT and UNCTAD, in International Encyclopedia of Comperative Law 21 (1981).Google Scholar
23. Personal communication.
24. BISD 14th Suppl. (1966), at 162.
25. Decision L/3636 (1971), BISD 18th Suppl. (1972), at 28.
26. Cf., e.g., the USA with respect to the Trilateral Agreement, BISD 16th Suppl. (1968), at 88; and GATT, L/4635 (1978), at 5 with respect to the Bangkok Agreement.
27. BISD 16th Suppl. (1974), at 17 et seq.; as well as GATT, L/3832 (1973) and 1/3950 (1973).
28. BISD 25th Suppl. (1978), at 6, 109; and GATT, L/4635 (1978).
29. Cf. GATT, L/4369 (1976), at 2, 8; BISD 23rd Suppl. (1977), at 46; GATT, L/5273 (1981), at 2, L/5292(1982), at 2 & 6.
30. Decision L/3545 (1971), BISD 18th Suppl. (1971), at 24.
31. Text reproduced in UN Doc. TD/B/854 (1981).
32. Decision L/4903 (1979), BISD 26th Suppl. (1980), at 203 et seq..
33. In cases, like the GSP waiver and the Enabling Clause, where all ‘developing countries’ are referred to, and not only the ‘less-developed contracting parties’, in GATT practice also developing territories are usually included. Cf. the quotation in the text supra note 30; and supra note 32, at 203 a 1.
34. J.H. Jackson, supra note 15, at 577 et seq., 603.
35. Cf. H.R. Krämer, Das Meistbegünstigungsprinzip und die Entwicklungsländer, 17 Jahrbuch fur Internationales Recht 135 et seq. (1974).
36. Cf. supra note 27–29.
37. J.H. Jackson, supra note 15, at 649.
38. Focus, GATT Newsletter 47, June 1987 at 1.
39. BISD 26th Suppl. (1980), at 33 et seq..
40. Id. at 8 et seq..
41. Id. at 116 et seq..
42. Cf. WD. Verwey, supra note 12, at 57–58, and 45 resp.; Cf. also Towards the New International Economic Order 32, para. 178 (UN.1982).
43. On the legal consequences of this distinction between ‘rights’ and ‘expectations’ see further W.D. Venvey, The United Nations and the Least Developed Countries: an Exploration in the Grey Zones of International Law, in J. Makarczyk (ed), Essays in International Law in Honour of Judge Manfred Lachs 548 et seq. (1984); and Id. The Impact of Organic Proliferation Within the United Nations System on the Emergence of a Preferential Legal Status of Developing Countries, supra note 15, at 189 et seq..
44. On this problem see further W.D. Verwey, supra note 15, at 193 et seq..
