Freedom of Transit and the Principles of Effective Right and Economic Cooperation: Can Systemic Interpretation of GATT Article V Promote Energy Security and the Development of an International Gas Market?

This article analyses the World Trade Organization (WTO) regulation of gas transit from the perspective of systemic integration of public international law. Unlike other goods, gas can be transported only via fixed infrastructure--pipelines. Consequently, in this particular context, the effective implementation of the principle of freedom of transit, incorporated into the GATT 1994, depends on the existence of certain ancillary rights, such as the right to access a transit State's pipeline network or construct new pipelines. While these ancillary rights are not directly mentioned in the GATT, the article examines whether they can be derived from principles of general international law, subsumed under WTO law through systemic integration. The outcome of this assessment is crucial for understanding whether WTO transit rules can ensure the energy security of gas-dependent WTO Members and promote the development of an international gas market, at the period when a number of key energy-exporting and transit States have joined the WTO. The analysis of the relationship between primary and ancillary rights in the context of gas transit in this article can be transposed mutatis mutandis to other areas of network-bound trade. The Author 2013. Published by Oxford University Press. All rights reserved., Oxford University Press.