7 - The politics of the waiver process

Summary

It is the claim of this study that an institutional waiver power may play an important role in flexibilizing international law and to thus address concerns as to its legitimacy and effectiveness. A waiver power may be used to address a number of such concerns. Firstly, through the exercise of a waiver power an international institution may take account of strong domestic policy preferences in individual situations. Secondly, the temporary suspension of obligations may mitigate the economic burden of compliance. Thirdly, international legal regimes can be linked and coordinated through the waiver power. And fourthly, legal norms may be adapted through the waiver process to the collective needs and preferences of the membership.

As was seen in Chapter 4 the waiver power of the GATT 1947 and the WTO Agreement was indeed exercised to take account of these constellations. However, limitations of the waiver practice also became apparent. Even though WTO law's potentially negative effects on development in poor countries constitute one of the major legitimacy deficits of the WTO, the waiver power was exercised rather reluctantly to relieve individual developing country members of their legal obligations. In the WTO capacity problems and claims by individual members that compliance with specific WTO obligations impeded their pursuit of important public policy objectives were only addressed through waivers either where the agreements already provided for differential treatment by way of transitional periods or where members sought relief from special commitments assumed when becoming members of the WTO.