Hostname: page-component-78c5997874-v9fdk Total loading time: 0 Render date: 2024-11-10T05:12:52.246Z Has data issue: false hasContentIssue false
  • English
  • Français

OVERSEAS TERRITORIES IN THE WTO

Published online by Cambridge University Press:  02 May 2016

Matthew Kennedy Open the ORCID record for Matthew Kennedy [Opens in a new window]
Get access Rights & Permissions [Opens in a new window]

Abstract

In the wake of the Faroe Islands fishing dispute, this article seeks to clarify the status of overseas territories in the World Trade Organization (WTO). The article considers the rule of public international law regarding the territorial application of treaties, the impact of territorial limitations in WTO goods and services schedules and the treaty actions of individual States responsible for the international relations of overseas territories. The article then explores the implications of WTO rights and obligations in respect of Members' overseas territories, including limitations on free riding and preferential treatment.

Keywords

depositarymultilateral treatyOverseas Association Decisionterritorial applicationWTO
Type
Shorter Article and Notes
Information
International & Comparative Law Quarterly , Volume 65 , Issue 3 , July 2016 , pp. 741 - 761
Copyright
Copyright © British Institute of International and Comparative Law 2016 

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

2 1867 UNTS 154; 33 ILM 1144 (1994).

3 The WTO Dispute Settlement Body (DSB) established a panel to examine the complaint: see minutes of the DSB meeting of 26 February 2014, WT/DSB/M/342, Item 6, regarding European Union–Measures on Atlanto-Scandian Herring. See also request for establishment of a panel by Denmark in respect of the Faroe Islands, WT/DS469/2, 10 January 2014. The matter was later settled: see (n 35) below. In parallel, Denmark in respect of the Faroe Islands initiated an arbitration proceeding under Annex VII to the United Nations Convention on the Law of the Sea: The Atlanto-Scandian Herring Arbitration (The Kingdom of Denmark in respect of the Faroe Islands v The European Union). The Permanent Court of Arbitration acted as the Registry.

4 See the map of disputes at <https:// www.wto.org/english/tratop_e/dispu_e/dispu_maps_e.htm> as it appeared in 2013–14, available in the Internet Archive. Contrast the status of Greenland as indicated on that map at that time and today.

5 Sources: COMTRADE and US Census Bureau. cf the WTO Committee on Trade and Development Dedicated Session on Small, Vulnerable Economies (WT/COMTD/SE/ document series).

6 Source: Verisign, ‘The Domain Name Industry Brief’ 12(3) (September 2015). The domain is ’.tk’.

7 For an illustrative list see A Aust, Modern Treaty Law and Practice (2nd edn, Cambridge University Press 2007) Appendix Q. Uninhabited territories are not considered in this article.

8 G Novak, ‘Overseas Territories, Australia, France, Netherlands, New Zealand, United Kingdom, United States of America’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2012) 1122, 1136.

9 TFEU, Pt IV and Annex II. See generally D Kochenov (ed), EU Law of the Overseas: Outermost Regions, Associated Overseas Countries and Territories, Territories Sui Generis (Wolters Kluwer 2011); F Murray, The European Union and Member State Territories: A New Legal Framework under the EU Treaties (TMC Asser Press 2012).

10 These include Guadeloupe, French Guiana, Martinique, Mayotte, Réunion, Saint-Martin, the Azores, Madeira and the Canary Islands: TFEU, arts 349 and 355(1), as amended.

11 WTO Agreement, arts XI:1 and XII:1.

12 cf eg the United Nations Educational, Scientific and Cultural Organization, which has nine Associate Members (Anguilla; Aruba; British Virgin Islands; Cayman Islands; Curaçao; Faroes; Macao, China; Sint Maarten and Tokelau); the United Nations Economic and Social Commission for Asia and the Pacific also has nine Associate Members (American Samoa; Cook Islands; French Polynesia; Guam; Hong Kong, China; Macau, China; New Caledonia; Niue; and the Northern Mariana Islands). Associate Members do not vote. In the WTO the customary practice is not to vote at all but to take decisions by consensus.

13 cf UNESCO Constitution, art II, para 3; FAO Constitution, art II, para 11; WHO Constitution, art 8.

14 eg North American Free Trade Agreement, art 201 and Annex 201.1.

15 eg the free trade agreement between the European Union and its Member States, and the Republic of Korea, art 15.15. The EU GATS schedule contains an earlier version of this provision: see (n 117) below.

16 GATT, ‘Application of the General Agreement’, L/3166, 21 January 1969.

17 WTO Agreement, art XIV:3.

18 See (nn 69, 71 and 84).

19 See the latest version at <https:// www.wto.org/english/res_e/booksp_e/wto_status_legal_inst15_e.pdf>.

20 cf the functions of depositaries set out in the Vienna Convention on the Law of Treaties, art 77.

21 Regarding the Agreement on Trade in Civil Aircraft 1979, the Agreement on Government Procurement 1994 and their respective amending protocols, see Status of WTO Legal Instruments (2015) (n 19) 118–29.

22 Status of WTO Legal Instruments (2015) (n 19) preliminary page facing page 1.

23 GATT document L/4959, BISD 27S/119, Panel report adopted 18 June 1980.

24 EEC–Quantitative Restrictions against Imports of Certain Products from Hong Kong, GATT document L/5511, BISD 30S/129, Panel report adopted 12 July 1983.

25 In the latter case, the UK delegation spoke for both the complainant and the respondent when the matter was raised in the GATT Council, due to the fact that the United Kingdom held the rotating EC presidency at the time. The same delegation read out one statement then ‘expressed surprise’ as it responded to that statement: see minutes of the meeting of the GATT Council of 7–8 December 1981, C/M/154, Item 11.

26 Hong Kong succeeded to GATT contracting party status on 23 April 1986 (BISD 34S/27).

27 United States–Restrictions on Imports of Tuna, Request for consultations under art XXIII:1 by the Kingdom of the Netherlands, DS33/1, 10 July 1992. See also Recourse to art XXIII:2 by the Kingdom of the Netherlands, DS29/3, 14 July 1992.

28 GATT document DS29/R, 16 June 1994 (not adopted).

29 France specifically identified the territories of New Caledonia, Wallis and Futuna, French Polynesia, the French Southern and Antarctic lands and St Pierre and Miquelon (as well as Mayotte, which is no longer an overseas territory) in a non-exhaustive list. See the minutes of the meeting of the Committee on Market Access held on 23 September 2002, G/MA/M/33, paras 8.20–8.23.

30 ibid.

31 Commission Regulation (EU) No. 793/2013 of 20 August 2013 establishing measures in respect of the Faroe Islands to ensure the conservation of the Atlanto-Scandian herring stock, art 5(1).

32 ibid, art 5(2).

33 See (n 3).

34 ibid. The European Union did not address the issue in its statements to the Dispute Settlement Body.

35 The matter was settled without a panel report: see WT/DS469/3, 25 August 2014.

36 Another curiosity of the Faroese case was the fact that the European Union was sued in the WTO by one of its own Member States. This had a precedent in the 1983 GATT case against the EEC brought by the United Kingdom on behalf of Hong Kong: see (n 25).

37 DSU, art 4.2. Footnote 3 defers to different provisions of any other covered agreement concerning measures taken by regional or local governments or authorities within the territory of a Member: see (n 97).

38 Panel report, EC–Bananas III, WT/DS27/R, para 7.50. Note that in a later dispute the measure at issue was applied in an area that included the exclusive economic zone of Clipperton Island, a French territory, but France was not the complainant: Appellate Body report, US–Tuna II (Mexico), WT/DS381/AB/R, para 172 and fn 356.

39 Anecdotal evidence suggests that was the reason France negotiated commitments on trade in services in respect of New Caledonia.

40 Appellate Body report, US–Shrimp, WT/DS58/AB/R, para 133.

41 Appellate Body report, EC–Seal Products, WT/DS400/AB/R, para 5.173.

42 ibid, para 6.1(b)(ii).

43 Canada appeared to accept that Greenland was covered by Denmark's WTO membership: see Panel report, EC–Seal Products, WT/DS400/R, para 7.143 and n 187. Note the EU comments at para 6.3.

44 ibid, para 7.317.

45 National territory can expand: see ‘German Unification’ – Communication from Germany, 22 October 1990, L/6747. State succession is not addressed either. In the GATT, a definitive decision on the Contracting Party status of Yugoslavia was reached only after the United Nations General Assembly adopted a resolution on the matter: see minutes of the meeting of the GATT Council of 16 June 1993, C/M/264, Item 1.

46 See minutes of the DSB meeting on 7 April 2000, WT/DSB/M/78, Item 4, and the DSB meeting on 18 May 2000, WT/DSB/M/80, Item 2, Nicaragua–Measures affecting imports from Honduras and Colombia, WT/DS188 (complaint by Colombia). See also WT/DS201/1 (complaint by Honduras).

47 Maritime Delimitation between Honduras and Nicaragua in the Caribbean Sea (Nicaragua v Honduras), Judgment, ICJ Reps 2007, at 659.

48 Issues of territorial scope may yet be raised by the treatment of products originating in occupied territories. See Case C-386/08, Brita GmbH v Hauptzollamt Hamburg-Hafen [2010] ECR I-01289.

49 Regarding art 28 of the Vienna Convention on non-retroactivity of treaties, see Appellate Body report, Brazil–Dessicated Coconut, WT/DS22/AB/R, 15; Appellate Body report, Canada–Patent Term, WT/DS170/AB/R, para 71.

50 Done at Vienna 23 May 1969, 1155 UNTS 331, 8 ILM 679.

51 S Karagiannis, ‘1969 Vienna Convention, Article 29’ in O Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (Oxford University Press 2011) 731, 735.

52 The phrase was associated with the ‘colonial clause’ which allowed a colonial power to determine whether a treaty would apply to its colonies: see Report of the International Law Commission on the work of its sixteenth session (1964), Yearbook of the International Law Commission 1964, A/CN.4/SER.A/1964/Add.l (Pt 2), vol II (1965) 179–80. See further S Karagiannis, ‘The Territorial Application of Treaties’ in DB Hollis (ed), The Oxford Guide to Treaties (Oxford University Press 2012) 305, 309–11.

53 Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur, Yearbook of the International Law Commission 1964, A/CN.4/SER.A/1964/Add.l (Pt 2), vol II (1964) 13.

54 WTO Agreement, art XIV, governs acceptance, entry into force and deposit of multilateral WTO agreements. There are two remaining plurilateral agreements, which are subject to separate acceptance procedures: see WTO Agreement, art XIV:4.

55 WTO Agreement, art XI:1. The terms agreed with every acceding Member under art XII:1 also include a schedule of goods concessions and a schedule of services commitments.

56 GATT 1994, arts I:1, III:2 and III:4 and XI:1; GATS, art II:1.

57 WTO Agreement, preamble, 3rd recital.

58 GATT Panel report, US–Sugar, para 5.3; Appellate Body report, EC–Export Subsidies on Sugar, WT/DS265/AB/R, paras 219–20.

59 The applicability of a schedule to a particular territory, once the protocol or certification takes effect, is another matter.

60 See (n 103).

61 Uruguay Round, ‘Modalities for the Establishment of Specific Binding Commitments under the Reform Programme’, Note by the Chairman of the Market Access Group, MTN.GNG/ MA/ W/24, 20 December 1993.

62 Nevertheless, tariff concessions make little sense in a small territory with no customs administration.

63 For example, compare the modalities at note 61 with the final text of the Agreement on Agriculture. Art 4.1 simply refers to the concessions specified in Members' schedules, omitting the modalities used to calculate them, whereas art 4.2 restates the coverage of the modality on tariffication.

64 See generally Appellate Body report, Korea–Various Measures on Beef, WT/DS161/AB/R, para 115; Appellate Body report, EC–Export Subsidies on Sugar, WT/DS265/AB/R, para 199; Appellate Body report, US–Gambling, WT/DS285/AB/R, paras 178 and 196.

65 Protocol of Provisional Application, paras 1 and 2. As regards the extension of the application of GATT to other territories, see GATT/CP.3/SR.5, 20 April 1949, Item 3. Many of those territories later succeeded to Contracting Party status under art XXVI:5(c) of GATT 1947. Neither the Protocol of Provisional Application nor GATT 1947 is now in effect.

66 The United Nations Secretary-General circulates these to all parties when he is the depositary of the treaty: see United Nations Treaty Section, Multilateral Treaties Deposited with the Secretary-General; Status as at 1 April 2009, ST/LEG/SER.E/26, passim.

67 See (n 21).

68 WTO, Status of WTO Legal Instruments (2015) 33. Aruba obtained autonomy as a separate country within the Kingdom of the Netherlands as of 1986: see ‘Status of Aruba’, Communication from the Netherlands, GATT doc L/5952, 21 January 1986; and United Nations Treaty Section, Multilateral Treaties Deposited with the Secretary-General (n 66) XXXIII, ‘Historical information – Netherlands’.

69 Communication from the Netherlands, 12 November 1995, not circulated by the WTO treaty depositary: see Status of WTO Legal Instruments (2015) 33. cf the Netherlands government online treaty database: <https://treatydatabase.overheid.nl/>.

70 WT/Let/611, dated 5 February 2008. See further Kennedy, M, ‘When Will The Protocol Amending the TRIPS Agreement Enter Into Force?’ (2010) 13 JIEL 459CrossRefGoogle Scholar, 466.

71 Communication from the Netherlands, 10 October 2010, not circulated by the WTO treaty depositary but see Status of WTO Legal Instruments (2015) 33 fn 74. The Netherlands government online treaty database (n 69) indicates that the WTO Agreement now applies to Netherlands (Bonaire), Netherlands (Sint Eustatius), Netherlands (Saba) and to Curaçao and to Sint Maarten rather than to the ‘Netherlands Antilles’.

72 See the description of signatories at 1869 UNTS 489, 493–494, 500–501 and 506–507 and declarations at 511.

73 See Constitutional Act of Denmark of 5 June 1953.

74 French Constitution of 4 October 1958, as amended, Title XII – On territorial communities, arts 72–74.

75 These include American Samoa, Guam, the Northern Mariana Islands and the US Virgin Islands.

76 See United Nations Treaty Section, Multilateral Treaties Deposited with the Secretary-General (n 69) XV, ‘Historical information – Denmark’. The obligation of the Danish government under national law to consult with home rule governments before depositing such an instrument is another matter.

77 See (n 36) and accompanying text.

78 See (n 29) and accompanying text.

79 United Nations Treaty Section, Multilateral Treaties Deposited with the Secretary-General (n 69) XXXIII, ‘Historical information – New Zealand’.

80 In an exchange of correspondence with the Legal Directorate of the OECD dated 24 November 1987, the US Mission declared: ‘Where a treaty does not require special notice concerning application to territories, US law and practice are that ratification for and in the name of the United States constitutes ratification with respect to all territory under the US authority and jurisdiction, except as the United States may otherwise expressly declare.’ It can also be noted that the United States applied GATT in all its territorial possessions prior to the establishment of the WTO: see GATT, ‘Application of the General Agreement’, L/3166, 21 January 1969, 4.

81 WTO, Status of WTO Legal Instruments (2015) 11.

82 UK Foreign and Commonwealth Office Treaty Section Guidance, ‘Extension of Treaties to Overseas Territories’ available at <https:// www.gov.uk/guidance/uk-treaties>. The United Kingdom applied GATT in these crown dependencies and overseas territories prior to the establishment of the WTO: see GATT, ‘Application of the General Agreement’, L/3166, 21 January 1969, 4–5.

83 Aust (n 7) 206–8.

84 Communication from the United Kingdom, 3 March 1997, WT/Let/154; see also WT/Let/349. This extension is omitted from the Status of WTO Legal Instruments but shown on the UK government online treaty database at <http://treaties.fco.gov.uk/treaties/treaty.htm>. Regarding UK treaty practice in relation to crown dependencies, see further Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur (n 53) 13.

85 Third Report on reservations to treaties by Mr Alain Pellet, Special Rapporteur, A/CN.4/491/Add.3, 253–5, discussed in the Report of the International Law Commission on the work of its fiftieth session (1998) A/53/10, 104–6. cf. WTO Agreement, Article XVI:5 on reservations. See further Aust (n 83); Karagiannis (n 52) 308–9.

86 United Nations, Treaty Section of the Office of Legal Affairs, Summary of Practice of the Secretary-General as Depositary of Multilateral Treaties, ST/LEG/7/Rev.1 (1999) para 285.

87 The tariff rates and other trade policy measures that an overseas territory actually applies would be relevant factors to take into account.

88 See United Nations Treaty Section, Multilateral Treaties Deposited with the Secretary-General (n 69) X and XXXIV, ‘Historical information’ – Cook Islands and Niue.

89 See the New Zealand government online treaty database at <http://www.treaties.mfat.govt.nz/home>, which indicates no territorial applications for the WTO Agreement.

90 GATS, art II:3.

91 Third Report on the Law of Treaties by Sir Humphrey Waldock, Special Rapporteur (n 53) 12; Karagiannis (n 51) 732–4.

92 As to rights based on the nationality of service suppliers and intellectual property right holders, see below.

93 See also notifications of sanitary measures listing overseas territories among the regions or countries likely to be affected: G/SPS/N/COL/69 (25 February 2003); G/SPS/N/NZL/355 (3 August 2006).

94 In particular, GATT 1994, art X; SPS Agreement, art 8 and Annex B; TBT Agreement, art 10; GATS, art III.

95 TRIPS Agreement, Pt III, Section 4.

96 GATT 1994, art XXIV:12 and Understanding on the Interpretation of art XXIV of GATT 1994, paras 13–15; TBT Agreement, arts 3 and 7; GATS, art I:3(a). See D Palmeter and PC Mavroidis, Dispute Settlement in the World Trade Organization: Practice and Procedure (Cambridge University Press 2004) 22–3.

97 DSU, art 22.9.

98 WTO Agreement, art XII:1. Chinese Taipei acceded on this basis.

99 Coverage schedules annexed to the plurilateral Agreement on Government Procurement are not considered here.

100 Later renegotiations of Schedule II—Section D for the Netherland Antilles and Aruba have never been certified: see G/MA/223 and G/MA/224.

101 Harmonized Tariff Schedule of the United States, General Note 2; 19 CFR section 101.1 Definitions. US import and export statistics include data on trade between the US Virgin Islands and foreign countries even though those islands are not officially part of US customs territory. The United States does not compile data on trade between its other possessions and foreign countries. See US Department of Commerce and US Census Bureau, ‘US Trade with Puerto Rico and U.S. Possessions’, 2014, FT895/14.

102 See (n 87). The Isle of Man is part of EU customs territory: TFEU, art 355(5)(c); UK Act of Accession to the EU, Protocol 3; Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, art 3, as amended. The same arrangements under EU law apply to the Channel Islands, to which the United Kingdom has not extended its application of the WTO Agreement. As for Gibraltar, see TFEU, art 355(3).

103 GATT 1994, art 1(b)(i) and (ii) incorporating earlier tariff and accession protocols. Art 1(d) incorporates the results of the Uruguay Round annexed to the Marrakesh Protocol.

104 Schedule II—(Benelux), Section D. See ‘Status of Aruba’ (n 68) listing the protocols which applied to the Netherlands Antilles and which would continue to bind Aruba.

105 Schedule XI—France, Sections E, K and M.

106 GATT, ‘The Territorial Application of the General Agreement. A list of Territories to which the Agreement is applied’, G/5, 17 March 1952. Greenland was omitted from later lists as was Zealand and other Danish islands.

107 Schedule XXII—Denmark; GATT, The Territorial Application of the General Agreement. A list of Territories to which the Agreement is applied, G/5/Add.1, 21 May 1952; GATT, ‘Application of the General Agreement’, L/3166, 21 January 1969 (specifically listing the Faroe Islands, which already had a home rule government). This was the last version of the list circulated.

108 The GATT Secretariat listed only the EC schedule for Denmark in 1992: see TAR/W/85. However, the Community had no authority to withdraw a schedule as regards a non-EC territory. In any case, the unilateral withdrawal of Member States' schedules prior to the entry into force of a renegotiated Community schedule is of questionable legal effect in the WTO. Regarding the generally relaxed attitude of the WTO dispute settlement mechanism to this practice, see Kennedy, M, ‘Two Single Undertakings: Can the WTO Implement the Results of a Round?’ (2011) 14 JIEL 77, 99–100CrossRefGoogle Scholar.

109 Treaty amending, with regard to Greenland, the Treaties establishing the European Communities, OJ L 29/1 (1 February 1985).

110 Part III was created for non-tariff measures in Uruguay Round schedules. It is optional.

111 Agricultural products, as defined, exclude fish but include furskins: Agreement on Agriculture, art 2 and Annex 1.

112 Exemptions are still available through the so-called de minimis and Green Box exemptions and the Blue Box under art 6.1, 6.4 and 6.5 of the Agreement on Agriculture.

113 Agreement on Agriculture, art 8. All the subsidies disciplines in Pts I, II and III of the Agreement on Subsidies and Countervailing Measures apply to them.

114 WTO document GATS/SC/5, Schedule of specific commitments, the Kingdom of the Netherlands with respect to Aruba, 15 April 1994.

115 WTO document GATS/SC/3, Schedule of specific commitments, the Kingdom of the Netherlands with respect to the Netherlands Antilles, 15 April 1994.

116 GATS/SC/61, Schedule of specific commitments, France in respect of New Caledonia, 15 April 1994.

117 GATS/SC/31, Schedule of specific commitments, European Communities and their Member States, 15 April 1994, Introductory note 1, 1. The same limitation may apply to the additional commitments accepted by EU Member States in the GATT Protocols from 1996 to 1998. This is confirmed in the case of the Netherlands by its acceptances of the GATS Protocols for ‘the Kingdom in Europe’ only: WTO, Status of WTO Legal Instruments (2015) 99–111.

118 The EU Treaties apply to the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for that island set out in the UK's terms of accession to the EU: TFEU, art 355(5)(c). Under those terms, the Isle of Man does not benefit from the free movement of persons or services in the European Union: UK Act of Accession to the EU, Protocol 3.

119 GATS/SC/90, 15 April 1994, 1, see the first horizontal commitment in all sectors covered by this schedule.

120 No overseas territory was specifically excluded either. See eg GATS/EL/90, United States, Final List of art II (MFN) Exemptions, 15 April 1994. Further, note that the schedules of specific commitments for Aruba and the Netherlands Antilles (n 114 and n 115) include a note that each ‘does not prejudice or influence in any way the relations between [the relevant territory] and the European Community’.

121 See generally GATT, Analytical Index: Guide to GATT Law and Practice (WTO 1995) 794.

122 GATT 1994, art I:2, in respect of import duties and other charges.

123 GATT 1994, Annex A.

124 GATT 1994, Annex A.

125 GATT 1994, Annex D. The United States has identified these territories as the US Virgin Islands, Guam and American Samoa: see Report of the Government of the United States, 7 July 2011, WT/L/816, para 3. The historical preferences exception does not cover territories for which the United States assumed responsibility after 1 July 1939: see GATT 1994, art I:2(b).

126 General Council Decision of 27 July 2007, United States – Former Trust Territory of the Pacific Islands, WT/L/694, regarding preferences for the Northern Mariana Islands, a commonwealth in political union with the United States. The waiver also applies to the Republic of the Marshall Islands, the Federated States of Micronesia and the Republic of Palau, three independent nations in free association with the United States.

127 For example, art XXIV of GATT 1994 on free trade agreements or the Enabling Clause.

128 GATT 1994, Annexes A, B and C. Annex B also covered Belgian colonies. Denmark only acceded to GATT later.

129 Council Decision 2013/755/EU of 25 November 2013 on the association of the overseas countries and territories with the European Union OJ L 344/1 (19 December 2013).

130 The overseas countries and territories are listed in TFEU, Annex II.

131 Agreement between the European Community, of the one part, and the Government of Denmark and the Home Government of the Faroe Islands, of the other part, done at Brussels, 6 December 1996.

132 SPS Agreement, art 2.3; TBT Agreement, arts 2.1 and 5.1.1; GATS, art II.

133 Further, where natural and legal persons in an overseas territory possess the nationality of their responsible State, the treatment of their service suppliers would not fall within the scope of GATS: see art I:2 and art XXVIII(k) and (m).

134 The European Union and its Member States have not entered a specific exemption from MFN treatment for overseas territories under GATS: see GATS/EL/31, 15 April 1994.

135 GATT Contracting Parties Decision of 28 November 1979 on Differential and More Favourable Treatment, Reciprocity, and Fuller Participation of Developing Countries, L/4903 (‘Enabling Clause’), n 1.

136 General Note 4(a) of the Harmonized Tariff Schedule of the United States, under the heading ‘Non-independent countries and territories’ available at <http://www.usitc.gov/tata/hts/bychapter/index.htm>. The only French territory covered today is Wallis and Futuna Islands.

137 Aruba, the Netherlands Antilles, Greenland and the Cayman Islands graduated in 1998: Presidential Proclamation 6942 of October 17, 1996 (61 Fed. Reg. 54719). French Polynesia and New Caledonia graduated in 2002: Presidential Proclamation 7328 of 6 July 2000 (65 Fed. Reg. 42595).

138 See the full list at <http://www.mofa.go.jp/policy/economy/gsp/explain.html#section1>.

The only US territory covered is American Samoa. The beneficiaries also include the Canary Islands which form part of EU territory.

139 Council Decision 2013/755/EU (n 129). This applies to the overseas countries and territories of France, the Netherlands and the United Kingdom, plus Greenland.

140 The 1970 version was notified in GATT document L/3467 and examined in the GATT Working Party Report on Association between the EEC and Certain Non-European Countries and Territories, L/3611 and Corr.1, 1 November 1971. Reports on subsequent versions were submitted to the WTO in the WT/REG106/R series.

141 Council Decision 2013/755/EU (n 129), art 45.

142 GATT 1994, art XXIV:8(b).

143 General Council Decision of 14 December 2006, Transparency Mechanism for Regional Trade Agreements, WT/L/671.

144 General Council Decision of 14 December 2010, Transparency Mechanism for Preferential Trade Arrangements, WT/L/806.

145 cf the conditions that may be applied to GSP preferences, clarified in Appellate Body report, EC–Tariff Preferences, WT/DS246/AB/R, paras 162–165.

146 TFEU, art 204, and Protocol (No 34) on Special Arrangements for Greenland, sole art, para 1.

147 Both sides grant most favoured treatment but for one side (the overseas territories) this is more narrowly defined: see Council Decision 2013/755/EU (n 129), art 51.

148 Waivers are difficult to obtain for preferential trade arrangements but any request for a waiver for the OAD would face the added obstacle of Argentina's claims to the Falkland Islands (Islas Malvinas), South Georgia and the South Sandwich Islands, which are beneficiary territories.