Freedom of Transit and Pipeline Gas
: Can The World Trade Organization Provide a Viable Legal Framework for the Development of an International Gas Market?

  • Vitaliy Pogoretskyy

    Student thesis: Doctoral ThesisDoctor of Philosophy


    This study discusses how the World Trade Organization could promote the development of an international gas market by playing a more prominent role in regulating rights essential to effective pipeline gas transit. Gas transit is network-dependent in the sense that it cannot be established without the existence of pipeline infrastructure in the territory of a transit State and the ability to access this infrastructure.

    Nevertheless, at an inter-regional level, there are no sufficient pipeline networks that would allow gas to travel freely from a supplier to the most lucrative markets. The existing networks are often operated by either private or State-controlled vertically-integrated monopolies that are usually reluctant to release unused pipeline capacity to their potential competitors. These obstacles diminish the gains from trade for States endowed with scarce and relatively immobile natural resources, such as gas, including developing land-locked countries that rely on revenues from gas exports. These obstacles can also undermine Members’ energy security and their sustainable development achieved by shifting domestic production from dirty fuels to cleaner energy sources – namely gas.

    From a technical perspective, gas transit can be established by invoking what is referred to in this study as ‘third-party access’ and/or ‘capacity establishment’ rights. The first main question that this thesis analyses is, therefore, whether, and, if so, how these rights are regulated by WTO rules relevant to transit, including: GATT Article V:2 (first and second sentences) establishing the principles of freedom of transit and non-discrimination, the ‘non-violation complaint’ provision under GATT Article XXIII:1(b), and the GATS. This question has not been answered by WTO panels or examined sufficiently by scholars. The key contribution of this study to the existing academic literature on energy transit lies in the fact that this study analyses the above rules through the prism of systemic integration of WTO law sources with other relevant rules of public international law, including principles of general international law and treaties regulating transit. By contrast, previous researchers discussed the regulation of third-party access and capacity establishment rights from a limited perspective of WTO law.

    The second main question examined in this study is how WTO transit rules could be improved through a legislative reform to regulate particular aspects of trade in pipeline gas better – namely third-party access and capacity establishment rights. This question is answered by exploring two options: the codification of the existing principles of general international law relevant to these rights in the WTO legal system and the progressive development of WTO transit rules through the expansion of additional commitments of Members on energy services under the GATS.

    While this study analyses the relationship between WTO transit obligations and inherent ancillary rights (namely third-party access and capacity establishment rights) implied in these obligations in the context of trade in pipeline gas, the conclusions reached here may have practical application in other areas of network-bound trade, such as trade in electric power.
    Date of Award2015
    Original languageEnglish
    SupervisorMelaku Desta (Supervisor) & Joost Pauwelyn (Supervisor)


    • Gas pipelines
    • Gas transit
    • Freedom of transit
    • Article V of the GATT 1994, Energy Charter Treaty
    • Land-locked countries
    • Gas market
    • Energy security

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