On the question raised in my last post – what was the reason for deleting from Russia’s accession protocol the sentence on non-derogation of its rights under the WTO Agreement – I have now located further explanation in Annex C-9 to the Panel Report in Rare Earths, INTEGRATED EXECUTIVE SUMMARY OF THE ARGUMENTS OF THE RUSSIAN FEDERATION. The answer was set out in paragraph 5 (underline added).
3. In China – Raw Materials the Appellate Body ruled that the provisions of the GATT Article XX are not available where there is no explicit reference to them in the commitment contained in the Protocol, and the absence of such a reference represents ‘the Members' common intention not to provide access to such defence.' These findings are a matter of serious concern for the Russian Federation.
4. We would like to recall that the issue of the right of the new members to invoke the WTO Agreement exceptions in respect of the commitments contained in the Protocols of accession was repeatedly discussed in the course of Russia's accession to the WTO. In that context, Russia proposed to include specific language in its Protocol of accession, stating that "nothing in these commitments shall be understood to derogate from the rights of the Russian Federation under the WTO Agreement as applied between the Members of the WTO by the date of accession of the Russian Federation to the WTO". As discussed with Members this language was specifically designed to re-state the right of the Russian Federation, inter alia, to use defences provided for in the WTO Agreement, in particular in the GATT Articles XX and XXI and GATS Articles XIV and XIV bis, in respect of the commitments undertaken in its Protocol of accession. This language was reflected in the draft Accession Protocol as attached to the draft Working Party report (in the document WT/ACC/SPEC/RUS/25/Rev.3 of 15 October 2004).
5. However, Russia was assured by Members that in accordance with well- established customary practices of the WTO and the understanding shared by the Members, this additional language is redundant as all Members have equal availability of defences under the WTO Agreement in the context of the whole integrity of all parts of the WTO Agreement, in particular Multilateral Trade Agreements and Protocols of accession, with or without specific reference to such defences in the Protocol of accession. Inclusion of such language in their view might have been interpreted as the opposite, thus undermining the rights of those Members whose Protocols of accession became effective before the accession of the Russian Federation and did not contain similar language. Eventually, conforming to this understanding of the Membership Russia agreed to delete the mentioned reference from the draft Protocol of accession and with such an understanding it concluded the Protocol.
6. In this dispute we see that the same WTO Members deviate from their own previous statements and understanding expressed in the course of Russia's accession to the WTO. This is a matter of our systemic concern, as the multilateral trading system has no room for such double standards.
*The Russian Federation requested that its oral statement serve as the integrated executive summary.
Judging from the published record of this case, Russia’s account has not been contradicted by the US, EU, Japan, or any of the 15 other third parties in the case.
ADD: One of the readers has pointed out that the EU and the US did counter Russia’s account of this negotiation history in their responses to the Panel’s request for comment.
Some relevant parts of EU’s response:
the EU is not able to accede to Russia’s description of the negotiating history. What is true is that the question of Russia’s right to invoke general exceptions of the GATT 1994 as a justification for a departure from a commitment contained in the Protocol of Accession was repeatedly discussed in the course of Russia’s accession to the WTO …
the EU explicitly made known to Russia its view that and why the exceptions of the GATT 1994 should not be applicable (for instance for the gas price commitment, whose nature and negotiating background was related to the SCM Agreement, which also does not feature the exceptions of the GATT 1994). Thus, it is entirely inaccurate to posit that the EU would have assured the Russian Federation’s negotiators of the applicability of GATT exceptions to all accession commitments.
The European Union further insisted that the language which Russia had proposed for a prominent location in its Accession Protocol, and which Russia now refers to40, was not only unprecedented language for an Accession Protocol, but could potentially have had the significantly more far-reaching effect of undermining any "WTO-plus" in Russia’s Protocol of Accession, by reducing all Russian obligations to the extent of WTO obligations that other WTO Members have. This was the reason why the EU refused to accept Russia’s proposed language.
The US response:
the language that the Russian Federation cites was not included in the Russian Federation’s Protocol of Accession, and the Panel should not give credence to one Member’s perception of why it was not included. The Russian Federation's oral statement selectively recites negotiating history and neglects the consistent objections by Members to the Russian Federation's proposed language.
These responses are published in the official websites of the EU and USTR, but do not seem to be part of the published record of this case. My thanks to the reader's tip.