Article XXVI GATT, Annex H GATT

The text of the GATT signed at Geneva on October 30, 1947 was drafted as any self-sufficient international agreement, therefore specifying the modalities of its (definitive) acceptance by the contracting parties and of its (definitive) entry into force, notwithstanding the contextual signature of the Protocol of Provisional Application and the pending coming into existence of the ITO Charter which would have the effect of replace it. Indeed, the provisions of Art. XXVI were not strictly limited to the subject of the acceptance, entry into force and registration, as the title might suggest. Art. XXVI:1 also provided an assessment of the “date of this agreement [i.e. GATT]” which affected the implementation of other GATT provisions. Art. XXVI:5(c) introduced a procedure of accession to the GATT which was alternative to the general one provided in Art. XXXIII, allowing customs territories having gained full autonomy in the conduct of their external commercial relations to accede through sponsorship by an existing contracting party previously responsible for the territory. Art. XXVI was amended several times , with the hidden or declared purpose of encouraging the Contracting Parties to abide definitively by the GATT. During the 1949 Third Session of the CONTRACTING PARTIES at Annecy a Protocol of Terms of Accession was adopted, containing standard terms envisaging a right of acceding governments that were not entitled to accept the General Agreement under Art. XXVI:2, to accede definitely to the GATT at any time after its entry into force following a procedure similar to the one for acceptance contained in Art. XXVI. The Annecy Protocol served as a model for all subsequent accession protocols. In the 1954-1955 Review Session, the CONTRACTING PARTIES agreed on the validity of reservations accompanying an act of acceptance pursuant to Art. XXVI to the effect that Part II of the GATT will be applied to the fullest extent not inconsistent with existing domestic legislation (the “grandfather clause”). The Review Session also resulted in the deletion of the Ad Note Art. XXVI included in the Geneva 1947 text. These amendments did not suffice to convince the Contracting Parties to accept GATT definitely for their concerns, especially those regarding existing legislation, never weakened. Art. XXVI has been superseded by Art. XIV of the Treaty establishing the WTO as far as the subject of acceptance, entry into force and deposit of the agreement is concerned. The provisions of Art. XXVI:1 and of Art. XXVI:5(c) were not continued, and thus do not have a correspondent in the WTO Treaty. On the whole, Art. XXVI has had a limited application. The only provision of this Art. which has had a considerable impact on the asset and functioning of the General Agreement has been para 5(c). Since entering GATT under Art. XXVI:5(c) had produced the undesirable result of making it possible to become Contracting Party without having undertaken significant obligations (for example, if the sponsoring State had previously made limited tariff concessions), Art. XI of the WTO Agreement on original membership, in requiring that all original Members have schedules, was designed to remove this inconvenience, i.e. to ensure that all WTO Members have made tariff and other commitments, even if they had not done so in GATT.