CPTPP: Entry-into-force provision of the UK's Accession Protocol
The UK is a CPTPP ‘member’ but not yet a CPTPP ‘Party’.
With the United Kingdom’s Accession Protocol to the CPTPP being signed on 16 July 2023, the UK was quick to start referring to itself as the CPTPP’s newest “member”. This came under some criticism as the CPTPP doesn’t actually use the term ‘member’, which is more commonplace at the WTO, and technically the UK doesn’t get any benefits from CPTPP until its Protocol enters into force and it becomes a Party. That being said, I noted that in Ministerial statements and the like it was pretty common for CPTPP governments to use “member” as a shorthand to refer to all of the “Parties and Signatories” (while they were waiting for the full set of signatories to ratify).
It is - though - interesting to look at the approach to entry-into-force (EIF) adopt in the UK’s Accession Protocol, as it is slightly involved.
In broad terms, the EIF provision sets two different tests/requirements for the Protocol to enter into force, each of which applies in a different time period.
The first test applies within the first 15 months of the signing of the Protocol. It requires the UK and all CPTPP Parties to have submitted their instrument of accession/ratification to the CPTPP Depositary.1 Once that’s done the Protocol enters into force 60 days later and the UK becomes a CPTPP Party.
If the Protocol doesn’t enter into force in the first 15 months, the second test kicks in and the requirements are relaxed somewhat. In this period, all that is needed is the lodgment of the UK’s instrument of accession and the ratification of at least six CPTPP Parties. This alternative test ensures that EIF of the Protocol is not held up indefinitely waiting for ratifications (or vetoed by a single party).
There are (at least) three reasons for this two-stage approach to entry-into-force:
The CPTPP Commission’s agreed accession process set the baseline rules for how entry-into-force was supposed to work - and it said all signatories had to ratify and a different arrangement could be used only “if there is a significant delay”.
The first 15 month period gives everyone something to aim for, so hopefully motivates governments to get their domestic processes moving to meet a deadline.
Having the Protocol enter into force at the same time for everyone just makes things simpler and easier. If the Protocol enters into force for six current CPTPP Parties and the UK but not others, technically this could raise questions such as: who can participate in CPTPP meetings and how will decisions get made? How will the next accession process work? And how does cumulation under Rules of Origin work vis-a-vis non-ratified economies?
This two-stage approach is also found in the original TPP, but was not adopted for the CPTPP. For the CPTPP there was no need to wait for unanimity, instead just six (or fifty percent) of the signatories needed to ratify. Given the last ratification of the founding members only happened this year (Brunei), this means everyone else had an additional four years of CPTPP being in force by not waiting for unanimous ratification.
Note the UK only has 12 months from signing to deposit its instrument of accession (see Article 19 of the Accession Protocol), so it will definitely meet the stage one requirements. The question is whether the other CPTPP members will also do so.