Our panel invited us to explore the place for and proper treatment of "development concerns" within the WTO legal regime. Three broad questions were raised. How should development be defined at the WTO? Whether S&D treatment was a useful strategy? What were better alternatives strategies?
By way of preface, the multilateral trade regime has never before been as friendly to developing countries than at present. By this, I do not suggest that the present situation is optimal, only that it is better than everything that has gone before. The WTO at ten years is more democratic and inclusive than its predecessors. It is more receptive to development and developing country concerns from various old and new quarters and has responded better to these concerns than the GATT. This is evident across all the different functions of the WTO. However, the incorporation of development concerns within the trade regime and providing a positive response to them is a complex and immense work in progress.
I begin by broadly framing the relationship between the WTO and development in rights language. All member states, indeed, all states have the "right" to develop and to make positive effort to do so. This right would be exercised through a legitimate government whose responsibility it would be to work towards the development of the state. The government of a state not only has the right and responsibility to develop, but the obligation to do so, and this obligation is owed to the people that the government represents. Thus, the development of a state is not the responsibility of the WTO; however, the WTO ought not to obstruct such development. This principle is supported by a coherent understanding of public international law that includes human rights law and also by certain provisions in the WTO agreements.
So, does development need to be redefined at the WTO? This raises other conceptually prior questions. Is there an existing definition of development at the WTO? Should there be a definition of development at the WTO? If there is one, is the existing definition limited to economic criteria? Should the definition be broadened to include parameters besides the economic, for example social, political or institutional criteria?
The proper definition of development will depend upon the context, which includes the institutional setting plus the purpose for the definition or the use it will be put to. There are many different conceptions of development in...