The Conundrum of WTO Accession Protocols: In Search of Legality and Legitimacy.

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: The WTO may prescribe more stringent rules of conduct for acceded members, based on individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain unanswered. Legally, accession protocols effectively modify the rules of conduct contained in the WTO multilateral trade agreements, but the legal basis for so doing remains unclear and the relationship between accession protocols and the WTO agreements undefined. Normatively, differential treatment of acceded members derogates from the WTO principle of nondiscrimination, but does so without proper justification. Confusion over the legal nature of accession protocols and a lack of clear rationale for the country-specific rules have led to problematic jurisprudence, creating uncertainty in the rights and obligations of acceded members vis-à-vis other members of the WTO. This Article aims to resolve the conundrum of WTO accession protocols by systemically and comprehensively addressing these questions. Building upon existing literature, the author takes a broader comparative and historical approach to an examination of the legality and legitimacy of WTO accession practice. On the question of legality, the Article proposes that WTO accession protocols be best characterized as subsequent practice of an international organization modifying its underlying treaties, and on that basis defines the relationship between accession protocols and the WTO agreements. On the question of legitimacy, the Article identifies the lack of reason and transparency in the accession rules as the main issues, and critiques the "entry fee" theory offered by a WTO panel as justification for all accession rules. The Article then makes suggestions on what should and can be done to mitigate the deficit of legitimacy created by WTO accession practice. [ABSTRACT FROM AUTHOR]