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41 J. World Trade 683 (2007)
GSP Tariffs and Conditionality: A Comment on EC - Preferences

handle is hein.kluwer/jwt0041 and id is 691 raw text is: Journal of World Trade 41(4): 683-698, 2007.
© 2007 Kluwer Law International. Printed in The Netherlands.
GSP Tariffs and Conditionality: A Comment on
Maureen IRISH1
Conditionality attached to preferential tariffs has long been criticized by the
United Nations Conference on Trade and Development (UNCTAD) and many
developing countries as reflecting unilateralism, extraterritoriality and protectionism.
The Appellate Body's decision in EC-Preferences appears to permit World Trade
Organization (WTO) Members to treat different beneficiary countries differently and
attach conditions to the grant of preferences. In its interpretation of the Enabling
Clause, however, the Appellate Body identified certain requirements that limit the
use of conditionality. In order to comply with the clause, it may be that any
conditions will need to be directed toward the well-being of beneficiary countries.
Conditional preferences that respond to the interests of the preference-granting
countries may be inconsistent with the General Agreement on Tariffs and Trade
(GATT) Article I.
Article I of the General Agreement on Tariffs and Trade (GATT) contains the
most-favoured-nation (MFN) principle, which requires WTO Member countries to
make any favourable trade treatment of goods from one WTO Member immediately
and unconditionally available to imports from all other WTO Members.2 As an
exception to MFN, in the customs law of countries applying Generalized System of
Preferences (GSP) tariffs, goods imported from developing countries receive
preferential rates that are lower than the duties on imports from other WTO
Members.3 The current authorization for such preferences is contained in the Enabling
Clause, which permits developed countries to accord differential and more favourable
treatment to developing countries, without according such treatment to other
I Professor, Faculty of Law, University of Windsor; e-mail: <mirish@uwindsor.ca>. This comment is based
on a paper presented at the conference on Human Rights in a Globalizing Era?, organized by the Centre for Studies
in Social Justice, University of Windsor, August 2005. For comments on an earlier draft, I thank Marcia Valiante of
the Faculty of Law, University of Windsor and Rorden Wilkinson of the Centre for International Pohtics,
Department of Government, University of Manchester. I am grateful for support from the Canadian-American
Research Centre for Law and Policy at the Faculty of Law, University of Windsor. I would particularly like to
express my appreciation to Annette Demers, Reference Librarian, Paul Martin Law Library, University of
2 General Agreement on Tariffs and Trade, done 30 October 1947, into effect provisionally 1 January 1948,
into effect 1 January 1995, Annex 1A, Agreement Establishing the World Trade Organization (GATT Secretariat,
The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts (Geneva: WTO, 1994), p. 486),
Article 1:1.
3 WTO law does not contain definitions of the terms developed country or developing country. The
least-developed countries are those recognized as such by the United Nations (Agreement Establishing the
World Trade Organization, Article XI(2)).
Copyright 2007 by Kluwer Law International. All rights reserved
No claims asserted to original government works.

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