Imágenes de páginas
PDF
EPUB

customs union or free-trade area within a reasonable length of time.

Other provisions of the article set out procedures for the review by the Contracting Parties of proposed customs unions, free-trade areas, and interim agreements, in order to assure that they conform to the standards and conditions laid down in the article.

Article XXV: Joint Action by Contracting Parties-Waivers

Article XXV provides that representatives of the contracting parties shall meet from time to time in order to give effect to those provisions of the GATT that involve joint action (e.g. resolutions, decisions, waivers, etc.) and, generally, in order to facilitate the operation of the agreement. Throughout the agreement the term “Contracting Parties" (in capital letters) refers to the parties acting jointly. At these meetings each contracting party is entitled to one vote and, except as otherwise provided in the agreement, decisions are made by a majority vote.

In exceptional circumstances, not elsewhere provided for in the GATT, the Contracting Parties may, by a two-thirds majority vote, waive any obligation imposed upon a contracting party by the agreement.

Article XXVI: Acceptance and Entry Into Force

Since 1948 the GATT has been applied by the United States on a provisional basis, pursuant to the Protocol of Provisional Application of October 30, 1947.

Article XXVI sets out the procedure for bringing GATT definitively into force by the deposit of instruments of acceptance (i.e. ratification) by countries accounting for 85 percent of the total foreign trade of all the contracting parties computed in accordance with the figures set forth in annex H of the agreement. (NOTE: Under this formula GATT cannot be brought definitively into force without acceptance by the United States and the United Kingdom, each of which accounts for approximately 20 percent of the total foreign trade, as listed in annex H.)

The acceptance or ratification of the agreement by a contracting party extends to all territories for which that country has international responsibility, except those dependent territories

having separate customs regimes which are explicitly excluded at the time of acceptance. With regard to a separate customs territory included in the acceptance of a contracting party and which thereafter acquires full autonomy in the conduct of its external commercial relations and other matters covered by the agreement, provision is made whereby such a previously dependent térritory will be deemed a contracting party upon sponsorship by the contracting party previously responsible for it. Under this procedure, several former dependent territories, such as Indonesia, Malaya, and Ghana, have become full contracting parties in their own right.

Article XXVI also covers various other procedural matters, such as the date of the agreement, authentic texts, registration with the United Nations, etc.

NOTE: The 1947 Protocol of Provisional Application requires the application of the provisions of part II of GATT only "to the fullest extent not inconsistent with existing legislation." By a resolution of March 7, 1955, the Contracting Parties agreed that an acceptance of the agreement under article XXVI would be valid even if accompanied by a similar reservation, namely, that part II of the agreement would be applied to the fullest extent not inconsistent with legislation which existed on October 30, 1947, or, in the case of later acceding contracting parties, legislation which existed on the date of the protocol providing for such accession.

Article XXVII: Withholding or Withdrawal of Concessions

In order to take account of the different dates at which the tariff concessions and other provisions of the GATT could be applied by the various countries which participated in the 1947 tariff negotiations at Geneva and in subsequent tariff conferences, as well as the possibility that some countries might later withdraw from, or cease to apply, the agreement, article XXVII authorizes contracting parties to withhold or withdraw the particular tariff concessions which were initially negotiated with the country failing to apply, or withdrawing from, the GATT. However, other contracting parties having a substantial interest in these concessions must be consulted.

[graphic]

Thus, when China ceased to participate in the GATT, the United States availed itself of this procedure and, after consultation with other interested parties, withdrew a number of tariff concessions of particular interest to, and initially negotiated with, China.

Article XXVIII: Modification of Schedules

The procedures set forth in article XXVIII have provided a remarkable combination of stability and necessary flexibility for the tariff schedules annexed to the GATT.

On the one hand, under these procedures there is in substance agreement by contracting parties to apply generally their respective schedules, for successive, automatically renewable, 3-year periods, by undertaking to refrain from using, except at the end of such periods, the right provided for in article XXVIII to modify or withdraw particular concessions.

On the other hand, recognizing that not every one of the thousands of tariff rates bound in the schedules could forever remain unchanged, article XXVIII does in fact permit any contracting party, at the beginning of each 3-year period, to modify or withdraw particular tariff concessions in its schedule by renegotiating such concessions with the contracting parties primarily affected.

NOTE: During the original 1947 GATT negotiations it was agreed that the tariff schedules resulting from the negotiations should be stabilized or "bound" for at least 3 years by providing that the right to modify or withdraw concessions under article XXVIII should become effective on and after January 1, 1951. Thereafter, the assured life of the schedules has been extended on several occasions by action of the Contracting Parties. January 1, 1961, marks the beginning of the current 3-year period of stability.

A country desiring to modify or withdraw existing tariff concessions under article XXVIII could do so on January 1, 1958, or at the beginning of any subsequent 3-year period, by negotiation and agreement or consultation with the countries with which the concessions were initially negotiated and with such other countries as are determined by the Contracting Parties to have a substantial trade interest in the particular products affected. In such negotiations a key guiding principle of article XXVIII provides that the

negotiating countries will endeavor to maintain the general level of reciprocal and mutually advantageous concessions not less favorable to trade than the level existing prior to the negotiations.

In line with this principle the country desiring to modify or withdraw existing concessions usually seeks to obtain the agreement of the other countries concerned by offering "compensation" in the form of new concessions on items of comparable trade interest to the latter. However, if agreement is not reached that the compensation is adequate for the modification proposed, the country proposing the modification is nevertheless free to take the action and the other countries concerned are authorized to withdraw substantially equivalent concessions initially negotiated with the country making the modification.

In addition to the normal procedure permitting modifications or withdrawals of concessions at the beginning of a 3-year period (sometimes referred to as a "bound" period), additional flexibility is provided in paragraph 4 of article XXVIII. This provides that "in special cir cumstances" the Contracting Parties may authorize the renegotiation of particular concessions at any time (i.e. during the "bound" periods), subject to specified procedures and conditions. Once "special circumstances" renegotiations have been authorized by the Contracting Parties, the procedure is much the same as the normal article XXVIII procedure described above. Here, again, the main guiding principle is the endeavor to maintain the general level of reciprocal and mutually advantageous concessions between the negotiating countries no less favorable to trade than that existing prior to the negotiations. Article XXVIII bis: Tariff Negotiations

Between articles XXVIII and XXIX is an article numbered "XXVIII bis," which eventually will be renumbered "XXIX" when the present article XXIX is deleted from the GATT upon the entry into force of the protocol amending part I and articles XXIX and XXX.

Article XXVIII bis sets out basic general rules for tariff negotiations sponsored by the Contracting Parties. There is, first, recognition that customs duties often constitute serious obstacles to trade and that negotiations directed to the reduction of the general level of tariffs and other charges on imports and exports are of great im-.

portance to the expansion of international trade. Accordingly the article explicitly authorizes the Contracting Parties to sponsor such negotiations. Although contracting parties are not obligated to participate in multilateral tariff negotiations, there is recognition that the success of such negotiations depends upon widespread participation by trading nations.

The article provides that negotiations may be carried out on a selective, product-by-product basis, or by the application of such multilateral procedures as may be accepted by the contracting parties concerned. (NOTE: The selective, productby-product method of negotiation is the one which has actually been used in all GATT tariff conferences since 1947.)

Article XXVIII bis further provides that tariff negotiations shall be conducted in a way that takes into account (1) the needs of individual countries and individual industries, (2) the special needs of less developed countries, and (3) all other relevant circumstances. Negotiations may be directed toward the reduction of duties or the binding of duties against increase above specified levels. In principle, the binding against increase of low duties or of duty-free treatment is recognized as a concession equivalent in value to the reduction of high duties.

Article XXIX: Relation of GATT to the Havana Charter

Since it became apparent that the Havana Charter for an International Trade Organization would not come into force, the text of the present article XXIX may be regarded as of historical interest only. It is to be deleted and replaced by the immediately preceding article (which is presently numbered "Article XXVIII bis") upon the entry into force of the protocol amending part I and articles XXIX and XXX of GATT.

Article XXX: Amendments

Article XXX provides that amendments to part I of GATT or to articles XXIX or XXX become effective only when accepted or ratified by all of the contracting parties but that other amendments become effective, for the parties accepting them, upon acceptance by two-thirds of the contracting parties.

The article also provides that the Contracting Parties may decide that any party which has not

accepted an amendment made effective under the two-thirds rule may be required to withdraw from the agreement.

Article XXXI: Withdrawal From GATT

Article XXXI provides in substance that any contracting party shall be free to withdraw from the GATT (i.e. terminate its GATT obligations) upon giving 6 months' notice in writing. Also, as in the case of acceptance of the agreement, a contracting party may separately withdraw on behalf of its autonomous separate customs territories.

This general provision for withdrawal does not affect the provisions for withdrawal under special circumstances, as set forth in articles XVIII (paragraph 12), XXIII, and XXX (paragraph 2).

Finally, as a matter of practice, this provision for withdrawal upon 6 months' notice contemplates the definitive entry into force of GATT under article XXVI, but since this has not occurred, the GATT continues to be applied provisionally, subject to withdrawal on 60 days' notice.

Article XXXII: Contracting Parties

Article XXXII is really a definition of the term "contracting party" as used in the GATT. It provides that any government which is applying the General Agreement, whether definitively under article XXVI, or provisionally under the Protocol of Provisional Application, or as an acceding country under article XXXIII, is to be considered a "contracting party" under the terms of the agreement.

There is also a provision whereby, after the GATT enters into force definitively under article XXVI, those contracting parties which have accepted the agreement definitively may decide that any contracting party which has not so accepted it shall cease to be a contracting party. Article XXXIII: Accession

Article XXXIII provides in broad, general language for the accession (i.e. adherence or participation) of new contracting parties to the GATT, on terms to be agreed upon in each case between the acceding government and the Contracting Parties. The acceding government may accede on its own behalf or on behalf of a sepa

[graphic]

J

rate autonomous customs territory. Decisions on the terms of accession are made by a two-thirds majority of the Contracting Parties.

NOTE: Since the original negotiations among 23 countries at Geneva in 1947, many other countries have acceded to the GATT under article XXXIII. While this article does not spell out the details for accession, the normal procedure for full accession has involved tariff negotiations between the acceding country and certain contracting parties. At the end of the negotiations a protocol of accession is drawn up, pursuant to which the acceding country agrees to assume generally the obligations of the GATT and to make specified concessions in its own tariff in return for the benefits, including the tariff concessions, of the General Agreement. In addition to full accession pursuant to this article, arrangements have sometimes been made by a separate agreement for a country (e.g. Switzerland in November 1958) to accede provisionally to the GATT or otherwise to participate in the work of the Contracting Parties (e.g. Yugoslavia).

Article XXXIV: Annexes

Article XXXIV incorporates the annexes to GATT as an integral part of the agreement.

Annexes A to F list the territories referred to in article I (paragraph 2) for which existing preferential arrangement can be continued as an exception to the general most-favored-nation obligation.

Annex G lists the dates for establishing maxi

mum margins of preference for certain countries which chose dates other than April 10, 1947, as provided in article I (paragraph 4).

Annex H gives the percentage shares of world trade of each of the contracting parties, for the purpose of determining when GATT will enter into force definitively under article XXVI.

Annex I contains a number of important notes and supplementary provisions. For example, there are agreed definitions and explanations of certain words and phrases used in the articles.

NOTE: Annex J, which was deleted February 15, 1961, contained an alternative set of rules governing the application of discriminatory import restrictions for balance-of-payments reasons by countries electing the so-called "Geneva option” under paragraph (d) of article XIV as that article read prior to its amendment on February 15, 1961.

Article XXXV: Nonapplication Between Particular Contracting Parties

Article XXXV permits a contracting party to withhold the application of its schedule of tariff concessions, or of the entire agreement, from another contracting party with which it has not entered into tariff negotiations.

NOTE: At the present time (early 1961) there are 14 contracting parties which continue to invoke article XXXV against Japan, thereby declining to undertake GATT obligations toward Japan, although 9 of them in fact accord mostfavored-nation treatment to that country.

U.S. GOVERNMENT PRINTING OFFICE: 1961 O-612209 (12)

« AnteriorContinuar »