WORLD TRADE  
ORGANIZATION   
TN/TF/W/181 
10 July 2012  
 
(12-3711) 
Negotiating Group on Trade Facilitation Original:   English 
  
 
COMMUNICATION FROM INDIA 
 
 
  The following communication, dated 10 July 2012, is being circulated at the request of the 
delegation of India for consideration by the Ne gotiating Group on Trade facilitation at its meeting on 
9-13 July 2012.    
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1. Article V.7 of the GATT 1994 states that "the provi sions of this Article shall not apply to the 
operation of aircraft in transit, but shall apply to  air transit of goods (including baggage)."  In a 
communication dated 4 July 2012 (TN/TF/W/180), a Memb er has suggested that this text should be 
reinserted into Article 11 of the Draft Consolidat ed Negotiating Text, even after the text on the 
relationship to other WTO Agreements is resolved.  Concern has been expressed that non-
incorporation of this language in the new Agr eement on Trade Facilitation will be interpreted as a 
widening of the scope to encompass aircraft in tran sit.  This interpretation, according to the Member, 
is supported by provisions under the Vienna Convention, and Pane l and Appellate Body reports. 
Pending further consideration of the matter, as an interim measure, the Member has suggested that a 
footnote be added to Article 11 as a place holder to ensu re that this issue is fully reflected in the Draft 
Text. 
2. India endorses the view that aircrafts in transit are excluded from GATT Article V.  However, 
India does not agree to the suggestion that a footnot e be added to Article 11 as a place holder.  India's 
comments and concerns in the matter are discussed in the following paragraphs. 
3. India believes that the GATT 1994 and the new Agreement on Trade Facilitation, as and 
when concluded, would have to be read together ha rmoniously and that legal effect must be given to 
both.  The Appellate Body has developed an appro ach whereby the WTO Agreement is considered to 
be one Agreement with many Annexes.  As a result,  the interpreter has to give meaning to all the 
provisions of the Agreement.   
4. The current GATT Articles under negotiation, part icularly Articles V and X, contain several 
provisions which have either not been discussed at  all or discussed only partially, and it is unlikely 
that these provisions would be repeated in the new Agreement on Trade Facilitation.  Some of these 
provisions are as follows: TN/TF/W/181 
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  (a) Article V.2:  There shall be freedom of transit through the territory of each contracting party, 
via the routes most convenient for international transit, for traffic in transit to or from the 
territory of other contracting parties.  
(b) Article V.3:  Compliance with applicable customs laws and regulations.  
(c) Article V.5:  MFN Treatment in respect of ch arges, regulations and formalities in connection 
with transit. 
(d) Article X.1:  Protection of confidential information.  [ The provisions of this paragraph shall 
not require any contracting party to disclose confidential information which would impede 
law enforcement or otherwise be contrary to  the public interest or would prejudice the 
legitimate commercial interests of particular enterprises, public or private ].  
(e) Article X.1:  Publication of laws, regulations and administrative rulings of general application 
pertaining to requirements, restrictions and prohibitions on imports or exports or on the 
transfer of payments therefor, or affecting thei r sale, distribution, transportation, insurance, 
warehousing, inspection, exhibition, processing, mixing or other use.  
(f) Article X.3 (a):  Administration of laws, regul ations, judicial decisions and administrative 
rulings of general application in a uni form, impartial and reasonable manner.  
(g) Article X.3 (b):  Suo motu  review.  [ The central administration… may take steps to obtain a 
review of the matter in another proceeding if th ere is good cause to believe that the decision 
is inconsistent with established prin ciples of law or the actual facts .]  
5. In Document TN/TF/W/43/Rev.15, dated 9 Ju ly 2008, there was a provision under the section 
on Publication which read:  "Nothing in these provisions shall be  construed as requiring Members to 
disclose confidential information which would impe de law enforcement or otherwise be contrary to 
the public interest or would prejudice the legitimat e commercial interests of particular enterprises, 
public or private".   This text continued to figure in the Draft Negotiating Text until 25 February 2011, 
i.e. until TN/TF/W/165/Rev.7.  After discussions, the text was deleted from the Draft Text in its revised version 8, issued on 15 April 2011.  The ge neral feeling was that the discipline remained but 
no useful purpose would be served by repeating the language of Article X: 1 of the GATT 1994 in the 
new Agreement.    6. In another similar case, the text:  "There shall be freedom of transit through the territory of 
each Member, via the routes most convenient for inter national transit, for traffic in transit to or from 
the territory of other WTO Members"  which was there in the Draft Text dated 14 December 2009, got 
subsequently deleted from the Text w.e.f 25 February 2011 in Rev.7.  To cite yet another example, the 
discipline:  "All charges and regulations imposed by a Me mber on traffic in transit to or from the 
territories of other Members shall be reasonable,  having regard to the conditions of the traffic"  was 
there in the Draft Text dated 14 December 2009, bu t subsequently got deleted w.e.f 25 February 2011 
in Rev.7.  This was done as part of the effort to reduce duplication and eliminate unnecessary texts, as 
these texts are already there in GATT Article V. 
 7. India's concern is that if only the text excludi ng aircraft in transit is reinserted into Article 11 
and other provisions, which were previously a part of the Draft Text, are not so reinserted, it would 
convey an impression that Members have had consci ously decided to discard these disciplines.  This 
is however not the case.  India is of the view that all such issues, including the one raised in document 
TN/TF/W/180 dated 4 July 2012, should be resolved  in a cross-cutting manner and not in piecemeal. 
India fully subscribes to the view expressed in the afore-cited document that the provisions of 
Article V of the GATT 1994 shall not apply to the opera tion of aircraft in transit, but we do not think  TN/TF/W/181 
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  that the way to resolve this issue would be to inser t a footnote in Article 11 for aircraft in transit, 
while leaving the other issues unaddressed.   
Proposal 
 
8. In the light of the above, India proposes that  the text on aircraft in transit should not be 
reinserted as a footnote to Article 11.  However, in  case a decision is taken to the contrary, India 
proposes to re-insert the following provisions of  the GATT 1994 in Article 15 as a place holder for 
further discussion:  
(i) Article 1:  "Nothing in these provisions shall be construed as requiring Members to disclose 
confidential information which would impede la w enforcement or otherwise be contrary to 
the public interest or would prejudice the le gitimate commercial interests of particular 
enterprises, public or private." 
(ii) Article 11:  "There shall be freedom of trans it through the territory of each Member, via the 
routes most convenient for international transit, for traffic in transit to or from the territory of 
other Members." 
(iii) Article 11:  "All charges and regulations imposed by a Member on traffic in transit to or from 
the territories of other Members shall be reas onable, having regard to the conditions of the 
traffic." 
9. India also proposes that the other issues me ntioned at paragraph 4 above be listed under 
Article 15 as a place holder for further discussion. 
 10. India is making this submission in light of the decision pronounced by the NGTF Chair in the meeting held on 9 July 2012, clarifying that any text proposed by a Member which in its opinion needs to be incorporated in the Draft Text as a pl aceholder for further discussion, would be so done in 
square brackets. 
 11. India reserves its rights to make additiona l submissions in this matter as well as on other 
matters on a similar footing, as and when the need arises.   
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