WORLD TRADE  
ORGANIZATION  TN/MA/S/20 
2 August 2006 
 
 (06-3736) 
Negotiating Group on Market Access  
  
 
GIVING LEGAL EFFECT TO COMMITMENTS ON NON-TARIFF BARRIERS 
 
Background note by the Secretariat
1 
  
1. The Secretariat was requested to prepare a not e setting out the various means by which legal 
effect has been given to Members' commitments concerning non-tariff barriers ("NTBs") arising from previous rounds of multilateral trade negotiations in the GATT and sectoral negotiations in the WTO.   
2. The term "NTB" covers in principle any measure that is not a tariff and encompasses a broad 
range of instruments that can affect the flow of tr ade.  The concept can be traced back to the GATT 
which envisaged a trading system governed by ta riffs and prohibited quantitative restrictions.  
Paragraph 16 of the Doha Ministerial Declaration es tablished the mandate to reduce or as appropriate 
eliminate NTBs, in particular on products of expo rt interest to developing countries.  Given the 
absence of a definition of the term NTB, this note uses it in the sense in which it has been understood 
in notes previously circulated.
2   
3. The means of giving legal effect to commitmen ts concerning NTBs can be organized in four 
groups:   
(a) multilateral agreements;   
(b) individual Members' commitments;   
(c) plurilateral agreements; and  
(d) other. 
A. MULTILATERAL AGREEMENTS  
4. Many WTO obligations concerning NTBs are given legal effect through multilateral 
agreements.  These agreements are binding on all Members.3   
5. GATT 1994 itself sets out many obligations concer ning NTBs, most of which apply in terms 
of the nature of the NTB.  Many of these obligatio ns have been further elaborated and supplemented 
by other multilateral WTO agreements, such as those on particular aspects of import procedures in  
the Agreement on Implementation of Article VII  (Customs Valuation), Agreement on Preshipment 
Inspection, Agreement on Rules of Origin and th e Agreement on Import Licensing Procedures; those 
on trade remedies: the Agreement on Implementati on of Article VI (Anti-dumping), Agreement on 
                                                      
1 This document has been prepared under the Secret ariat's own responsibility and is without prejudice 
to the positions of Members and to their ri ghts and obligations under  the WTO Agreement. 
2 See the inventory of NTBs circulated in document TN/MA/S/5/Rev.1 and the Secretariat note on 
sector-specific discussions in document TN/MA/S/13. 
3 Article II:2 of the Marrakesh Agreement Establishing the WTO. TN/MA/S/20 
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  Subsidies and Countervailing Measures and the Ag reement on Safeguards; and one on investment 
measures: the Agreement on Trade-Related Investment Measures (TRIMS). 
6. GATT 1994 provides for general exceptions, whic h apply to NTBs in terms of the policy 
objectives that they pursue, such as health, intell ectual property and environmental measures.  Some 
of these NTBs are also the subject of other multilate ral WTO agreements that apply in terms of the 
nature of the NTB, such as the SPS Agreement, th e TBT Agreement and certain sections of the TRIPS 
Agreement.    
7. Some multilateral WTO agreements contain obliga tions concerning NTBs that apply in terms 
of the nature of the NTB within particular pr oduct sectors only, such as the provisions on quantitative 
restrictions in the Agreement on Textiles and Clot hing (now terminated), or the obligation on 
conversion of several types of border measures into  ordinary customs duties in Article 4.2 of the 
Agreement on Agriculture.  Although limited in their scope to particular products, these obligations 
apply (or applied) to all Members on a multilateral basis. 
8. Certain multilateral "Unders tandings" were also agreed in the Uruguay Round and 
incorporated into GATT 1994 so that they form part of that agreement.
4  One of these Understandings 
confirms commitments and creates obligations specifi cally dealing with one particular type of NTB, 
namely, balance-of-payments restrictions.5   
B. PLURILATERAL AGREEMENTS  
9. Certain WTO obligations concerning NTBs in pa rticular sectors are given legal effect through 
plurilateral agreements.  These agreements create ob ligations that bind Members that have accepted 
those agreements.  They do not create obligations or rights for Members that have not accepted them.6  
There are now two plurilateral agreements in the WT O:  the Agreement on Trade in Civil Aircraft and 
the Agreement on Government Procurement.7   
10. The Agreement on Trade in Civil Aircraft dates from the end of the Tokyo Round in 1979 and 
was annexed, unchanged, to the WTO Agreement.  Its product coverage is limited.  It includes 
provisions on NTBs, including certification re quirements, specifications on operating and 
maintenance procedures, quantitative restrictions  and import and export licensing requirements. 
11. The Agreement on Government Procurement w as annexed to the WTO Agreement in 1994.  
Its scope is limited to procurement by governme nt entities listed in an appendix.  It includes 
provisions on NTBs, including national treatment, ru les of origin and technical specifications.  
12. Prior to the establishment of the WTO, the To kyo Round Codes were a series of agreements 
interpreting and elaborating particular GATT provisi ons agreed in 1979 but accepted by only some of 
the GATT contracting parties.  Some of the Code s concerned NTBs and were  predecessors of the 
corresponding WTO agreements, such as the co des on import licensing procedures, customs 
valuation, anti-dumping8, subsidies and countervailing measures, te chnical barriers to trade, as well as 
the codes on trade in civil aircraft and government procurement.   
                                                      
4 See Article 1(c) of GATT 1994. 
5 The Understanding on the Balance-of-Payment Provisions of the GATT 1994. 
6 Article II:3 of the Marrakesh Agreement Establishing the WTO. 
7 Two other plurilateral agreements: the Internationa l Dairy Agreement and International Bovine Meat 
Agreement, were annexed to the Marrakesh Agreement Establishing the WTO, but terminated effective 1 
January 1998. 
8 An earlier code on anti-dumping dated from the end of the Kennedy Round in 1967.    TN/MA/S/20 
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  C. INDIVIDUAL MEMBERS ' COMMITMENTS  
13. Certain WTO obligations concerning NTBs are given legal effect through commitments by 
individual Members.  These commitments are bindi ng on the Member making the commitment and 
create rights for all other Members.  This applies irrespective of whether th ey result from multilateral, 
sectoral or bilateral negotiations. 
14. At the conclusion of the Uruguay Round, eight Members included certain "Non-Tariff 
Concessions" in Part III of their respective schedules of concessions on goods.9  Each of these 
concessions lists tariff item numbers with descriptions of the relevant products  or product sectors, and 
sets out information on the non-tariff concession that  is made.  These usually entail removal or , 
elimination of particular measures, such as quantitativ e restrictions and import licensing requirements.   
15. The Accession Protocols of three other Member s set out commitments on particular NTBs on 
particular products in Part III of thei r respective schedules of concessions on goods.10  Some of these 
relate to particular types of NTBs (e.g. im port permits, tendering requirements, safeguards and 
standards) and others to particular NTBs on pa rticular non-agricultural products (e.g. TRQs on 
particular tariff lines and its allocation). 
16. The Chemical Agreement of 196711 sought to give legal effect to three commitments 
concerning NTBs by distinct means.  First, the elimination of the United States' American selling 
price system of valuation for chemical products was a condition precedent to entry into force of the agreement, which provided for additional tariff re ductions on chemical products by six contracting 
parties and the EEC.  The agreement then provide d for removal of an import restriction by one 
contracting party, which was given legal effect by th e insertion of a note after the relevant tariff line in 
its schedule, and it also contained an undertaking by  three contracting parties to reform their method 
of levying automobile road taxes. 
17. Although the tariff / NTB distinction does not apply to trade in services, GATS illustrates 
techniques that can be used in drafting individual Members' commitments in particular trade sectors.  The Reference Paper on basic telecommunications  h as no legal status but serves as a guide or model 
for negotiated commitments.  The Understanding on Commitments in Financial Services, annexed to 
the Final Act of the Uruguay Round but not formally part of the GATS, provides a formula approach that Members may voluntarily choose to adopt for commitments in that sector. 
D. O
THER  
18. The Information Technology Agreement or "ITA", formally named the Ministerial 
Declaration on Trade in Information Technology Products, was a declaration made in 1996 by the 
Ministers of fourteen Members and one then-acceding Member.  Its product coverage is limited.  Its 
provisions on tariff reductions we re given effect through individua l Members' commitments, brought 
into force by means of certifications of modifica tions to the participants' goods Schedules.  These 
create rights for all WTO Members.  However, the ITA created obligations for participating Members only, like a plurilateral agreement. 
19. With respect to NTBs, the ITA includes an undertak ing by the participants to consult, without 
prejudice to rights and obligations under the WTO Agre ement, as well as an undertaking to consider 
                                                     
 
9 The eight Members concerned are Belize, Cameroon , El Salvador, Egypt, Indonesia, Malta, Senegal 
and Trinidad & Tobago. 
10 The three Members concerned are Chin a, Chinese Taipei and Saudi Arabia. 
11 Agreement relating principally to Chemicals supplementary to the Geneva (1967) Protocol 
(BISD 15S/8).  
 TN/MA/S/20 
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  any divergence in customs classification of information technology products.
12  The ITA Committee 
has been carrying out a work programme on non-t ariff measures, in the course of which it has 
completed a pilot project on the types of conformity assessment procedures for EMC/EMI. 
__________ 
 
                                                      
12 WT/MIN(96)/16, paragraphs 3, 5 and 7.