. /.  WORLD TRADE  
ORGANIZATION   
TN/TF/W/180 
4 July 2012  
 
(12-3572) 
Negotiating Group on Trade Facilitation Original:   English 
  
 
CLARIFYING AND IMPROVING GATT ARTICLE V:  
AIRCRAFT IN TRANSIT 
  
Communication from Canada 
 
 
 The following communication, dated 3 July 2012,  is being circulated at the request of the 
delegation of Canada for consideration by the Negotiating Group on Trade Facilitation at its meeting 
on 9-12 July 2012. 
 
 
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Explanation 
At a facilitator led open-ended meeting on 31 January 2011, during an intensive streamlining 
phase of trade facilitation negotiations, it was agreed by those present that former paragraph 1.3 of 
Article 11 would be deleted from the next revision of the consolidated text as part of the effort to 
reduce duplication and eliminate unnecessary text. This change was subsequently formally adopted by 
the NGTF as part of the overall changes to Article  11.  Former paragraph 1.3 of Article 11 provided 
the exception for aircraft in transit found in GATT Ar ticle V (7) by stating: "The provisions on traffic 
in transit of this agreement shall not apply to the ope ration of aircraft in transit, but shall apply to air 
transit of goods (including baggage)". 
 
While Canada initially did not object to this de letion, subsequent policy and legal analysis 
that Canada has conducted indicates that inclusion of this exception language serves a valuable 
purpose in clarifying the scope of the article on tra ffic in transit, and that its deletion risks being 
interpreted as a widening of the scope to encompass airc raft in transit.  This interpretation is supported 
by provisions under the Vienna Convention, and Panel and Appellate Body reports, which 
demonstrate that omissions in a later treaty covering the same subject matter must have some meaning, supporting the need to reinsert this exemption.   
Canada has raised this concern on many occasions, and has since discussed the issue 
extensively with Members over the last 12 months in bilateral, small group and open-ended formats, 
with the assistance of the Chair appointed facilitator.  While all Members have agreed that Article 11 
should not cover aircraft in transit, there is no ag reement over whether specific text excluding aircraft 
in transit is necessary to ensure this interpretation prevails, with several indicating that they believe 
the issue will be resolved through the text on Relationship to Other WT O Agreements. Members 
agree, however, that with no current text pr oposals regarding the Relationship of the Trade 
Facilitation Agreement to Other WTO Agreements, it is not  possible to resolve this issue at this time.  
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  Canada continues to believe that it is essential to  reinsert the text excluding aircraft in transit 
into Article 11, even after text on the Relationshi p to Other WTO Agreements is resolved. However, 
mindful of the sensitivity of Members regarding the addition of bracketed text to the consolidated 
text, Canada requests that, as an interim measure,  the following footnote be added to Article 11 as a 
placeholder to ensure this issue is dealt with at the appropriate time and to ensure that Canada’s 
position on this issue is duly reflected in the consolidated text.  
 
Proposed New Text – Footnote to Article 11 
Members agree that aircraft in transit shall not be subject to the provisions of this Article, 
consistent with the scope of GATT Article V.  Members will review whether the specific exemption 
language proposed by Canada: "In accordance with Article V:7 of the GATT 1994, the provisions of 
this Article shall not apply to the operation of aircraft  in transit, but shall appl y to air transit of goods 
(including baggage)" should be included in Ar ticle 11 when the Relationship to other WTO 
Agreements is discussed. 
 
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