The Agreement contains elements that are a benchmark for trade facilitation reform.
It contains binding obligations and Article 24.2 stipulates that “All provisions of this Agreement are binding on all Members”, even so if some of the provisions use a legal language that weakens the commitment, such as by using the wording wherever possible. This means that Members have to take legislative and non-legislative, i.e. organizational or practical measures, to implement the provisions of the Agreement in their national laws and organizational practice.
Regarding implementation and entry into force, the Article 24 outlines two different scenarios under which the provisions will take effect: Developed countries have to ensure full implementation when the Agreement enters into force. Developing and least-developed countries can choose to implement the Agreement under the special provisions of Section II of the WTO Trade Facilitation Agreement (TFA), the so-called Special and Differential Treatment (S&DT) provisions. These provisions provide a longer timeframe for implementation and link implementation to technical assistance delivery. For more details on the S&DT provisions of Section II and how they affect the implementation of the provisions by developing and least-developed countries see S&DT page.
Monitoring of the implementation of the Agreement
Article 23.1. establishes a Committee on TF at the WTO. This Committee has several functions, including a monitoring and review function. It should review “the operation and implementation of this Agreement four years from its entry into force, and periodically thereafter” (Article 23.1.6) and organize at least annual meetings for consultation “on any matters related to the operation of this Agreement or the furtherance of its objectives” (Article 23.1.2.), and allow for the discussion of issues to be raised on the implementation of the Agreement (Article 23.1.7-8). The Committee therefore has an important role with regards to the implementation of the Agreement and is supplemented by National Trade Facilitation Committees in each Member States.
Furthermore, as developing country and least developed country Members will implement the Agreement progressively, the notification of commitments and later on the notifications of implementation, serve the purpose of indicating the status of implementation by developing and least developed country Members under Section II.
Implementation instruments and best practices
The WTO TFA is a horizontal instrument, which covers a wide range of government activities and is likely to affect various national laws and regulations and operations. The implementation of the Agreement will require WTO Members to take legislative and non-legislative, i.e. organizational or practical measures to ensure compliance in law and in practice. The concrete measures and mix between legislative and non-legislative measures to be taken vary from country to country.
Many aspects and provisions of the WTO TFA are also dealt with by other TF instruments, such as guidelines and recommendations or regional and international agreements. Those other instruments will be instrumental during the implementation of the provisions. They often provide more technical details and broader scope coverage and can guide countries when implementing the provisions. Recognizing the linkage between the different instruments, the WTO map in the TFIG is a mapping of existing instruments to the Articles of the WTO TFA.
Technical Assistance and Trade Facilitation Implementation Facility
The Preamble of the Agreement recognizes the special needs of developing and least developing and re-iterates the objective to increase TF related technical assistance and capacity building - one of the principles of the negotiating mandate.
The Agreement creates a legal and political obligation to provide technical assistance at least to least-developed countries and in more general terms to developing countries. In Article 21.1. Donor Members agree to facilitate provision of technical assistance and capacity building to developing and least developed countries with a view to implement the Agreement, and Article 21.2 stipulates that targeted assistance should be provided to LDC “so as to help them build sustainable capacity to implement their commitments”.
Whilst technical assistance is delivered bilaterally or through international organisations, donors, international organisations and the WTO Secretariat at set up the Trade Facilitation Agreement Facility to support developing and least developed countries with the implementation of the Agreement. The Facility became operational on 27 November 2014. It will have the functions of delivering capacity building to increase the understanding of the Agreement, provide technical assistance for WTO Members to prepare the notifications under Section II, support access to funding, and in exceptional cases, can become a funding mechanism for TFA related technical assistance.
In addition, Donor Members of the WTO have to provide information on their technical assistance provisions to the Committee on Trade Facilitation at least once a year.