Abstract
Since the US Presidential Proclamation terminating India status as a Generalized System of Preferences (GSP) beneficiary with effect from 5 June 2019, questions are raised on the WTO legitimacy of such an action. The US measure, which appears to have a punitive element—a move precipitated by lack of reciprocity from India by not providing ‘equitable and reasonable access’ for US products in Indian markets—challenges the fundamentally premise of the GSP schemes. Since the GSP schemes are established to provide economic and developmental opportunities for developing countries, and once established must be administered as per the 1979 General Agreement on Tariffs and Trade Enabling Clause, meaning it must be on a ‘generalised’, ‘non-reciprocal’ and ‘non-discriminatory’ basis, can India raise a legitimate challenge against the US action at the WTO Dispute Settlement Body? Or can the GSP schemes, being voluntary and unilaterally administered, be structured by developed countries as trade policy tools with stringent trade and non-trade conditionalities? The decision of the Appellate Body in European Communities—Tariff Preferences, the contested nature of the Enabling Clause and the heterogeneous nature of developing countries at the WTO makes the interpretation knotty. In this context, this article provides a brief comment on the legal basis of the Enabling Clause in the WTO framework and the legitimacy of the US action of termination of India from the beneficiary status. Keeping aside the legal question, the author is also of the view that time is ripe for India to consider ‘graduating’ itself from such preferential arrangements and engage in binding obligations that are reciprocal and sustainable.
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