How Some Countries Became ‘Special’: Developing Countries and the Construction of Difference in Multilateral Trade Lawmaking

This article investigates the origins of the ‘special’ status of developing countries in multilateral trade lawmaking, and traces the form that their special treatment has taken throughout the history of the trade regime. The article takes issue with the influential view that the special treatment of developing countries stemmed primarily from their desire to be exempted from the legal disciplines of the trade regime. Instead, I argue that many aspects of the special treatment of developing countries in the trading system are best explained as manifestations of the desire of developed countries to accommodate the developing countries within the trading system without changing the fundamental features and default characteristics of the system. Granting exemptions and special treatment to developing countries has allowed the developed countries to preserve their preferred design of the trade regime, and to stick to their favoured method of making trade law, while keeping developing countries within the system. I derive this argument from a detailed analysis of three formative episodes in the history of multilateral trade lawmaking: the debate about the treatment of quantitative restrictions at the GATT/ITO preparatory conferences in the late 1940s; the emergence of the principle of less-than-full reciprocity in tariff negotiations in the late 1950s and 1960s; and the developing countries’ resistance to the TRIPS Agreement in the Uruguay Round. The article concludes by exploring whether the special treatment of developing countries in the new Agreement on Trade Facilitation represents a departure from this pattern.