Technical Note: Steps towards the ratification, acceptance and entry into force of the WTO Agreement on Trade Facilitation

UNCTAD Technical Note #23. June 2015 1 Technical Note outlines steps WTO Members undertake ratification, acceptance entry force Protocol inserting Agreement Trade Facilitation WTO legal system. INTRODUCTION Ninth Ministerial Conference December 2013, Members World Trade Organization (WTO) concluded negotiations Agreement Trade Facilitation (TFA). Subsequently, 27 November 2014, WTO Members adopted Protocol Amendment order insert Agreement Annex 1A Marrakesh Agreement Establishing World Trade Organization (WTO Agreement). TFA enter force ( terms established Article .3 WTO Agreement) - thirds WTO Members, .. 108 Members June 2015, ratified notified acceptance Agreement WTO Secretariat. achieve , WTO Members complete main stages: 1) Ratification stage: domestic level, Member undertake ratification procedures, vary Member Member. 2) Acceptance stage: multilateral level, WTO Members completed domestic ratification procedures notify acceptance Protocol Amending WTO Agreement ( Protocol) WTO Members. 3) Entry force stage: Protocol effect acceptance -thirds WTO Members. Technical Note describes steps stages consecutive manner guide Member States application TFA. UNCTAD Technical Note #23. June 2015 2 UNCTAD Technical Note #23. June 2015 3 UNCTAD Technical Note #23. June 2015 4 . RATIFICATION STAGE Ratification means expression State consent legally bound treaty. stage involves relevant procedures pursued national level WTO Member notify acceptance TFA. Step 1: domestic legal requirements approval International Agreements ) WTO Member domestic law (.. constitutional / legal requirements) approving international agreements. WTO Members special rules trade agreements, focus requirements. ) Constitutional legal requirements typically contemplate procedures approving international agreements: ) Executive branch approve agreement issues covered fall exclusive power Executive; ii) Legislative branch approve agreement, .. implementation Parliament enacts law amends existing , issues covered agreement fall Legislative’ power. case, legal assessment Agreement carried (Box 1). Box 1: Legal assessment case legal assessment , WTO Members steps: ) Assessment Government Branch legal powers approve Protocol. ) agencies involved cross-border trade goods participate. National Trade Facilitation Committee1 (NTFC) ideally carry exercise. , coordinating agency leading trade facilitation negotiations, ministry trade, foreign affairs, relevant agency (.. Customs, transport coordinating ministry) / Attorney-General head legal assessment domestic procedure approval. ) assessment include legal analysis obligations contained WTO 1 Pursuant Article 23.2 TFA, WTO Members establish / maintain NTFC designate existing mechanism facilitate domestic coordination implementation provisions TFA. provision subject categorization, committee exist moment entry force TFA. information country-experiences establishing NTFC, visit UNCTAD-ECE-ITC repository Trade Facilitation Bodies World www.unctad.org/tfcommittee UNCTAD Technical Note #23. June 2015 5 TFA compared domestic legal framework. ) Developing -developed WTO Members support assessments, .. analysis carried Annex organizations2, : UNCTAD national trade facilitation implementation plans, studies technical notes; WTO assessments. ) final outcome assessment determination Parliament enact law amend existing order implement TFA. , Legislative branch competent authority approve TFA accordance constitutional/legal requirements. Source: UNCTAD Step 2: Elaboration domestic instrument approving Protocol Amending WTO Agreement WTO Members approve Executive Legislative branch TFA pertaining step 1 , actions applicable elaborating instrument approval Protocol Amending WTO Agreement: ) elaborate draft required constitutional/legal approval instrument ( law, act, decree decision). ) Depending procedural requirements, issuing accompanying note report explaining/justifying approval ratification Protocol, advantages, economic impact, risk analysis recommendations; ) submit draft instrument approval report : ) Cabinet / President/Prime Minister case Executive approval, ii) Parliament case Legislative approval. Annex models developing -developed WTO Members elaborate instrument approval lead act ratifying Protocol. Decision adopted General Council 27 November 2014 (WT//940) explicitly requests WTO Members notify acceptance “Protocol”. , decision states “Protocol” enter force accordance Article .3 WTO Agreement. , instrument approval follow approaches: ) approval/ratification Protocol (Annex -); ) approval/ratification Protocol TFA annexed Protocol (Annex -). 2 Decision adopted WTO General Council (WT//579) 1 August 2004, July package, Annex (Modalities Negotiations Trade Facilitation) organizations International Monetary (IMF), Organization Economic -operation Development (OECD), World Customs Organization (WCO), World Bank UNCTAD. UNCTAD Technical Note #23. June 2015 6 Step 3: Approval Protocol Amending WTO Agreement Depending domestic legal requirements (.. constitutional) WTO Member, approval WTO TFA happen instances: ) Executive branch: issues covered TFA exclusively part Executive' powers, Executive , parliamentary intervention, approve agreement. ) Legislative branch: Parliament3 body approve WTO TFA : ) implementation agreement requires enacting amending existing legislation, / ii) issues covered TFA Parliament’ powers. step WTO Members weighing political economic consequences party TFA. , coordinating agency relevant stakeholders, trade facilitation negotiators, required assist follow- debates answering technical questions TFA. Note TFA (Article 24.9) Protocol (paragraph 2) entering reservations respect provisions.4 Step 4: Ratification5 ) WTO Members express consent bound TFA ratification. ) case Parliamentary approval, Executive branch ratifies agreement . ) instrument ratification signed behalf State. , Head State, Head Government Minister Foreign Affairs legal capacity represent State signature. full powers6 order sign instrument. 3 certainty, term “Parliament” refers body exercising legislative power, , Congress, upper houses, Senate, Chambers . 4 Reservations unilateral statement signing, ratifying, accepting, approving acceding treaty, purports exclude modify legal effect provisions treaty application State. reservation enables state accept multilateral treaty giving possibility apply provisions comply (Arts.2 (1) () 19-23, Vienna Convention Law Treaties 1969). 5 instruments “approval” treaty legal effect ratification express consent State bound treaty. practice States approval ratification , national level, constitutional law require treaty ratified head state (Arts.2 (1) () 14 (2), Vienna Convention Law Treaties 1969). 6 Full powers document emanating competent authority State designating person persons represent State negotiating, adopting, expressing consent State bound treaty. UNCTAD Technical Note #23. June 2015 7 Note: Ratification concerned WTO Member immediately apply WTO TFA. agreement binding WTO Members ratify enters force. case developing -developed WTO Members, result Special Differential provisions Agreement (Section II TFA), provisions -designated Categories applicable respective schedules ( Box 2). II. ACCEPTANCE STAGE stage refers required procedure multilateral level Members follow signatory party WTO TFA. Step 5: Elaboration instrument acceptance Protocol ) domestic procedures successfully completed accordance guidelines Point , WTO Members, individually, prepare instrument acceptance. ) instrument rest WTO membership consent individual WTO Member bound Protocol. ) instrument acceptance information ( preparing instruments acceptance, WTO Members follow model prepared WTO Secretariat- Annex II): ) Full identification Protocol .. “ Protocol Amending Marrakesh Agreement Establishing World Trade Organization Geneva 27 November 2014” , alternatively, reproduce Protocol attachment instrument acceptance; ii) formal statement concerned WTO Member formally accepts Protocol expresses consent bound ; iii) date place instrument acceptance issued; iv) signature person legal capacity sign acceptance instrument; ) title person signing instrument. Step 6: Deposit instrument acceptance WTO Secretariat acceptance Protocol deposited WTO Director-General. practice, instrument acceptance deposited Depositary Assistant WTO Legal Affairs Division. transmission acceptance typically undertaken Mission WTO. information WTO Members deposited instruments acceptance, https://www.wto.org/english/tratop_e/tradfa_e/tradfa_agreeacc_e.htm UNCTAD Technical Note #23. June 2015 8 Box 2: Ratification, Categorization Implementation concepts play pivotal role process entry force full-implementation TFA WTO Members. , important draw lines . Ratification involves domestic procedure approval carried WTO Member accordance constitutional/legal requirements. result, WTO Members consent bound TFA acceptance Protocol. WTO Members, developed developing countries, comply procedure order signatory party TFA. Categorization developing developed countries (LDCs) determine implement individual provisions TFA identify provisions implement receipt technical assistance support capacity building. Pursuant Section II TFA, developing countries LDCs advantage possibilities seek support capacity building, categorize provision TFA, defined , notify WTO Members categorizations accordance specific timelines outlined agreement: Category : measures WTO Member implement time Agreement enters force (LDCs additional year); Category : measures WTO Member additional time implement; Category : measures WTO Member additional time technical assistance capacity building implement. Implementation entails undertake steps ensure full application obligations contained agreement. case WTO TFA, implementation stage place moments developed developing countries, including LDCs. ) Developed countries: full implementation TFA completed moment entry force TFA, ratification acceptance Protocol. ) Developing countries LDCs: benefits special differential treatment provision enshrined Section II TFA. , developing countries LDCs decide gradual implementation provisions contained TFA, possibly linking receipt technical assistance support capacity building. Source: UNCTAD UNCTAD Technical Note #23. June 2015 9 III. ENTRY INTO FORCE OF THE PROTOCOL AND THE WTO TFA Protocol TFA effect acceptance -thirds WTO Members, pursuant Article .3 WTO Agreement. Customarily, practice -thirds Members ratified notified acceptance, Members notified WTO Secretariat entry force delay. ) Protocol TFA enter force WTO Members accepted . ) , Protocol TFA effect Member acceptance . UNCTAD Technical Note #23. June 2015 10 ANNEX - RATIFICATION OF THE PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION [LAW/DECREE/ACT/DECISION] NO. [XXXXX] [Parliament, Congress, Senate, President]; regard [Law, Decree, Act, Decision . XXX] adopted [XX] [XXXX]199[] approving Marrakesh Agreement establishing World Trade Organization (“ WTO Agreement”), Agreements Annex 1, 2 3 Agreement; paragraph 1 Article WTO Agreement; Welcoming adoption Protocol Amending Marrakesh Agreement Establishing World Trade Organization (“ Protocol”), adopted WTO General Council Geneva 27 November 2014 (WT//940); Welcoming negotiations trade facilitation adoption Agreement Trade Facilitation, Bali December 2013; potential benefits implementation Agreement Trade Facilitation, expediting movement, release clearance goods, reducing trade costs; regard aim Protocol insert Agreement Trade Facilitation Annex 1A WTO Agreement; Recalling Protocol enter force accordance Article : 3 WTO Agreement; considered Protocol Agreement Trade Facilitation annexed Protocol; decided : Article 1 Ratify Protocol Amending Marrakesh Agreement Establishing World Trade Organization, Geneva November 27, 2014. Article 2 [XXXX] authorized submit acceptance Protocol. Article 3 [Law/Decree/Act/Decision] enter force [ publication Official Gazette][ entry force Agreement Trade Facilitation, annexed Protocol]. Approved [XXXX], [XX] [XXXX] 2015 UNCTAD Technical Note #23. June 2015 11 ANNEX - RATIFICATION OF THE PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION AND ITS ANNEX, THE AGREEMENT ON TRADE FACILITATION [LAW/DECREE/ACT/DECISION] NO. [XXXXX] [Parliament, Congress, Senate, President]; regard [Law, Decree, Act, Decision . XXX] adopted [XX] [XXXX]199[] approving Marrakesh Agreement establishing World Trade Organization (“ WTO Agreement”), Agreements Annex 1, 2 3 Agreement; paragraph 1 Article WTO Agreement; Welcoming adoption Protocol Amending Marrakesh Agreement Establishing World Trade Organization (“ Protocol”), adopted WTO General Council Geneva 27 November 2014 (WT//940); Welcoming negotiations trade facilitation adoption Agreement Trade Facilitation, Bali December 2013; potential benefits implementation Agreement Trade Facilitation, expediting movement, release clearance goods, reducing trade costs; regard aim Protocol insert Agreement Trade Facilitation Annex 1A WTO Agreement; Recalling Protocol enter force accordance Article : 3 WTO Agreement; considered Protocol Agreement Trade Facilitation annexed Protocol; decided : Article 1 Ratify Protocol Amending Marrakesh Agreement Establishing World Trade Organization, Geneva November 27, 2014, Annex, Agreement Trade Facilitation, Annex 1A WTO Agreement Safeguards Agreement. Article 2 [XXXX] authorized submit acceptance Protocol. Article 3 [Law/Decree/Act/Decision] enter force [ publication Official Gazette][ entry force Agreement Trade Facilitation, annexed Protocol]. Approved [XXXX], [XX] [XXXX] 2015 UNCTAD Technical Note #23. June 2015 12 ANNEX II [MEMBER] INSTRUMENT OF ACCEPTANCE OF THE PROTOCOL AMENDING THE MARRAKESH AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION Protocol Amending Marrakesh Agreement Establishing World Trade Organization (“ Protocol”) Geneva 27 November 2014 (WT//940); , accordance paragraph 4, Protocol enter force accordance Article :3 Marrakesh Agreement Establishing World Trade Organization; , , [ signatory], [ applicable: head state, head government minister foreign affairs] [Member], formally declare [Member] accepts aforementioned Protocol undertakes faithfully perform carry stipulations contained. witness whereof, [ title signatory] signed Instrument Acceptance, [place] [day] [month] year [year]. [Signature, title seal] Source Annex II: WTO Secretariat Technical Notes produced technical experts contracted UNCTAD Trade Facilitation projects financed Governments Norway, Sweden, Switzerland Spain European Union. purpose assist policy makers Trade Facilitation stakeholders understand scope implications trade facilitation measures included WTO Trade Facilitation Agreement (TFA) prepare implementation. opinions expressed Technical Notes necessarily coincide organization donors Trust Fund. Technical Notes formally edited. comments enquiries contact TF@UNCTAD.org Technical Notes http://unctad.org/technicalnotes