Each region has been allowed to develop non-comprehensive trading regimes that
a consistent schedule and definite rules, neither region has been able to generate
substantial flows of intra-regional trade. If the WTO is intent on using a devel-
240
Steven Buchta
XXIV or the Enabling Clause. The enforcement of regulations for South-South
RTAs would be more effective if concrete regulations were outlined. The Enabling
Clause was meant to allow developing members to form FTAs with reduced require-
ments. However, fewer obligations have resulted in less structure and insufficient
scheduling of tariff reductions. To ensure that barriers to trade are removed on a
consistent basis, the WTO should clearly define the phrase “substantially all trade”
for South-South FTAs. Defining this axiom, either under a new Enabling Clause
or under Article XXIV, would allow rule violations to be identified, judged, and
limited through enforcement mechanisms. One may argue that “substantially all
trade” has been left undefined to allow for flexibility in the negotiation of tariff
lines. That is why the Appellate Body ruled that substantially all trade did not
indicate all trade in the Turkey-Textiles dispute (Anonymous WTO Analytical
Index). However, the Body also noted that the clause indicates substantially more
than some trade (Anonymous WTO Analytical Index). AFTA and COMESA
can trade beyond some amount of intraregional trade if multilateral regulations
insist upon it.
In addition to the expression in Article XXIV, paragraph 8(b), the WTO should
describe what constitutes a “reasonable length of time” for South-South RTA
formations in order to guarantee an unvaried schedule of tariff harmonization.
Generous but well-defined schedules could provide a means for the multilateral
trading system to regulate the integration of South-South RTAs. Combined, these
precise explanations of what the WTO considers sufficient and steady liberalization
could prevent barriers to trade between developing member-states.
Secondly, the WTO must derive a strict criterion for determining whether a
member is eligible for developing country treatment. As noted, Singapore is not
at the same level of industrialization as other AFTA member-states. Singapore
has the ability to provide leadership and diversification in the region, but is
arguably an illegitimate member of AFTA. A justifiable method of preserving
region leaders such as Singapore would be to permit their inclusion under the
Enabling Clause. To limit the benefits that North-South RTAs could obtain
from this provision, RTAs registered under the Enabling Clause would have to
be examined to ensure that new entries do not include developed member-states.
For example, a Western state should be prevented from designating itself as the
leading member of a South-South RTA in Asia. One may counter this recom-
mendation by asserting that once a country reaches a certain level of economic
development, it should no longer receive preferential access to regional markets.
Instead, it should renegotiate trade regulations under a framework similar to a
North-South RTA negotiated between non-regional parties. Yet this burden of
rewriting rules and breaking up regional trade to uphold fair market access could
serve as a disincentive to achieving regional economic growth, and could further
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The Regulation of South-South RTAs: An Analysis of AFTA and COMESA
complicate regulatory frameworks
Another problem the WTO should address is the poor administration of dispute
settlement in South-South RTAs. Since 2000, about 20 percent of WTO disputes
settlements have involved developing members (Anonymous WTO Dispute Settle-
ment). However, none of the disputes have involved member-states within either
AFTA or COMESA. Indeed, some trade issues are resolved through consultation
and thus never reach the process of dispute settlement. Still, many important mat-
ters are resolved through highly politicized methods of negotiation. A legitimate
and consistent dispute settlement body would add certainty and confidence in
regional markets that are regulated by the politics of the day. Stabilizing a trading
environment through consistent and transparent enforcement could result in ac-
celerated integration and decreased barriers to intra-regional trade.
In order to foster an effective dispute settlement body, the WTO should
encourage the use of its own dispute settlement body. To foment the use of this
body, the WTO could provide more funding for technical missions to aid in dis-
pute cases between member-states of South-South RTAs. Also, the WTO could
provide non-binding panel reviews of rulings made by dispute settlements in
South-South RTAs. Reviews of decisions, while giving guidance to South-South
RTAs, would help the WTO gauge whether the RTAs are promoting or discour-
aging trade creation. Together, these two strategies for improving South-South
disputes could further the WTO’s pursuit of increased trade within industrializing
countries’ RTAs.
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