Safeguard measures and exceptions from the principle of non-discrimination
Abstract: The imposition of customs duties and other trade restricting measures are covered by certain fundamental general principles, such as the non-discrimination principle which is a main principle of WTO law. The principle ensures that WTO Members should not discriminate against their trading partners or between foreign and domestic goods. Some exceptions are however allowed. Members may conclude Regional Trade Agreements (RTAs) which further liberalise trade between the parties. Under certain conditions they are also allowed to apply trade defence measures, such as safeguard measures, which are meant to be used in emergency cases only. WTO law as well as many RTAs include rules on safeguards. In this study they are referred to as multilateral and regional safeguards respectively. The principle of non-discrimination and its exceptions play an essential role in relation to safeguard measures. According to WTO law safeguard measures are to be applied in a non-discriminative manner, which means that they shall target all imports of the product at issue irrespective of their origin. This principle is however not always upheld. Of particular interest for this study is the question of how the rules on safeguards de jure and de facto are applied in a selective way to achieve developmental goals and regional free trade. Multilateral as well as regional safeguard measures are studied and compared in order to pinpoint similarities and differences. Two regional trade arrangements have been chosen for this purpose: the Association of Southeast Asian Nations (ASEAN) and the Economic Partnership Agreements (EPAs). Furthermore, two case studies – Vietnam and Botswana – serve as illustrative examples of the complexity of the situation for developing countries in Asia and Africa. The results of the study show that if the purpose of multilateral safeguard measures is to restrict the use of escape clauses they are effective; but if the purpose is to provide an escape clause – they are not. However, the use of regional safeguard measures seems to interfere with the proper functioning of the non-discrimination principle. Moreover, the “spaghetti bowl” of regional trade agreements create uncertainty as to when and to whom safeguard measures can be applied. Finally, most regional trade agreements do not include sufficient special and differential treatment of developing countries when it comes to safeguard measures.
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