WTO Compassion or Superiority Complex?: What to Make of the WTO Waiver for “Conflict Diamonds”

In May 2003, the WTO granted a waiver for trade restrictions imposed on WTO members not participating in the Kimberley Certification Scheme combating so-called “conflict diamonds.” This Article examines the implications of this waiver decision. It argues that GATT/TBT provisions may already excuse the trade restrictions at issue, especially now that the UN Security Council has explicitly supported them. The waiver, therefore, risks sending out the wrong signals, confirming a WTO “superiority complex.” At the same time, by excluding restrictions between Kimberley participants from its scope, the waiver implies that WTO members considered the Kimberley scheme to be a non-WTO instrument that could play a role before a WTO panel. This convergence of the WTO treaty with other instruments of international law must be applauded. Yet, the same result could have been achieved by other, more conciliatory means, such as an interpretative decision. Referring to other recent examples, the Article concludes that WTO law should not take other international negotiations hostage. The WTO treaty is of equal value as other treaties. “Contracting out” of WTO rules by some WTO members ought to be accepted as long as it does not affect the rights of third parties.