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Presently, developing countries have avoided making the Enabling Clause
a topical issue on the Doha Development Agenda (DDA). In the Doha
Round of negotiations, the African, Caribbean and Pacific (ACP) Group of
States proposed that special and differential treatment (SDT) be included
as a waiver to Article XXIV, but the group has urged that the Enabling
Clause remain untouched in the DDA (Crawford 2005, 26). Adding
SDT under Article XXIV is argued to be a key way for South-South RTA
member-states to influence the WTO to adopt their development concerns
(Crawford 2005, 27). According to some developed countries, however,
further concessions under Article XXIV for developing countries are not
necessarily the best way to foster trade creation. For example, the Enabling
Clause has allowed South-South RTAs, such as COMESA and AFTA, to
lower barriers to trade in an unsystematic and delayed fashion.
In contrast to the stance of developing countries and the ACP, the
European Community (EC) and Australia have proposed a re-evaluation
of the Enabling Clause. An EC submission to the WTO emphasizes that
South-South RTAs should deepen their economic integration agreements
(Onguglo 2005, 23). To encourage better integration, the EC recommends
realigning the substantive commitments in the Enabling Clause with the
obligations stated in Article XXIV (Onguglo 2005, 23). This demonstrates
that even though the ACP regards the Enabling Clause as an acquis to the
WTO, the EC clearly views the waiver as open to review and modification
(Onguglo 2005, 23). The EC believes alterations to the waiver are long
overdue because most South-South RTAs have only partially liberalized
under current regulations (Onguglo 2005, 23). Modifying the Enabling
Clause could pressure South-South RTAs to continue liberalization at a
more regimented pace.
In addition to the above matter, the EC is concerned with the fairness
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Steven Buchta
of the Enabling Clause between developing countries (Onguglo 2005, 26).
EC member-states question whether large South-South RTAs should be
grouped with RTAs that do not represent a substantial amount of world
trade. Should smaller South-South RTAs be subject to the same trade
regulations as larger RTAs that trade massive amounts of goods with de-
veloped countries? In response to this question, the EC has recommended
equal treatment between developed country RTAs and South-South RTAs
with large external trade flows (Onguglo 2005, 26).
Overall, the EC is concerned with differential treatment under the
Enabling Clause. Given what it views as unnecessarily lax regulations for
South-South RTAs and a lack of distinction between fundamentally dif-
ferent South-South RTAs, the EC suggests that change is needed. At the
very least, the EC and Australia are willing to put the waiver issue up for
debate. This may lead to modifications that could improve the enforcement
and application of multilateral trade regulations. To date, the current level
of enforcement has not induced South-South RTAs to develop legitimate
legal frameworks that compel member-states to consistently lower barri-
ers to intra-regional trade. An analysis of AFTA’s and COMESA’s legal
frameworks displays this trend.
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