HISTORICAL DEVELOPMENT OF THE CONCEPT OF NON-VIOLATION COMPLAINTS IN INTERNATIONAL ECONOMIC LAW
The article contains a brief review of historical roots and process of development of the non-violation clauses in various international legal agreements, including the General Agreement on Tariffs and Trade and other WTO agreements. It points out the connection between the gradual transition from conditional to unconditional most-favored-nation treatment and the introduction of the clause about nullification or impairment of benefits. Finally, the article points out the fact that even though the WTO system of legal rules is much more detailed than the GATT system of legal rules, the non-non-violation clause not only remained in the original text of the GATT, but also was included in a number of other WTO agreements.
The article notes that the very need to introduce non-violation clauses in international trade treaties is connected with the global process of gradual introduction of unconditional most favored treatment clauses (in contrast to earlier treaty practice, where most-favored-nation treatment was provided on a conditional basis).
The article points out that one of the earliest attempts to establish the principle of unconditional most-favored-nation treatment as a global uniform approach was made at the London World Economic Conference, the most ambitious global attempt to do so before the successful conclusion of the General Agreement on Tariffs and Trade in 1947.
Even though the original cause for non-violation complaints has been a relatively limited scope of the General Agreement on Tariffs and Trade, the significant expansion of the scope of application of this multilateral trade system as a result of the Uruguay Round of multilateral trade negotiations did not result in the removal of the original non-violation clause from the text of the GATT. Moreover, non-violation clauses were included in a number of other WTO agreements. This, in turn, leads to a question, whether indeed it would be possible at any time in the future to conclude an international trade agreement, which would cover each and every measure affecting international trade, available to national governments.
Robert W. Staiger, Alan O. Sykes. How Important Can the Non-Violation Clause Be for the GATT/WTO? American Economic Journal: Microeconomics 2017, 9(2), pp.149–187
Kenneth W. Dam. Cordell Hull, the Reciprocal Trade Agreements Act, and the WTO: An Essay on the Concept of Rights in International Trade. New York University Journal of Law and Business 709 (2005).
Clavin, Patricia. The World Economic Conference 1933: The Failure of British Internationalism. The Journal of European Economic History 20 (1991), pp. 489–527.
Sungjoon Cho. GATT Non-Violation Issues in the WTO Framework: Are They the Achilles' Heel of the Dispute Settlement Process? Harvard International Law Journal. Vol. 39, No. 2
Douglas A. Irwin. Clashing over Commerce: A History of US Trade Policy. University of Chicago Press, 2017
General Agreement on Tariffs and Trade (GATT). URL: https://www.wto.org/English/docs_e/legal_e/gatt47.pdf
WTO Understanding on the Rules and Procedures Governing the Settlement of Disputes (DSU). URL: https://www.wto.org/English/docs_e/legal_e/28-dsu.pdf
General Agreement on Trade in Services (GATS). URL: https://www.wto.org/English/docs_e/legal_e/26-gats.pdf
WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). URL: https://www.wto.org/english/docs_e/legal_e/27-trips.pdf
WTO Doha Decision on Implementation-Related Issues and Concerns. URL: https://www.wto.org/english/res_e/booksp_e/ddec_e.pdf, pp. 27-43
Reciprocal Trade Agreement between the U.S. and Venezuela, singed on November 6, 1939. URL: https://www.loc.gov/law/help/us-treaties/bevans/b-ve-ust000012-1141.pdf
John Vincent Nye. The Myth of Free-Trade Britain and Fortress France: Tariffs and Trade in the Nineteenth Century. - The Journal of Economic History. Vol. 51, No. 1 (March, 1991), pp. 23-46
Australia-United States Free Trade Agreement (AUSFTA). URL: https://dfat.gov.au/about-us/publications/trade-investment/australia-united-states-free-trade-agreement/Documents/Final_text_ausfta.pdf
Treaty of Friendship, Commerce and Consular Relations between Germany and the United States of America, signed in Washington, D.C. on December 8, 1923. URL: http://www.worldlii.org/int/other/LNTSer/1926/227.html
U.S. Reciprocal Trade Agreements Act of 1934. URL: http://legisworks.org/congress/73/publaw-316.pdf