The Agreement on Trade Facilitation (ATF) was adopted at the Ninth Ministerial Conference of the World Trade Organization (WTO) convened in Bali, Indonesia, in December 2013, following about ten years of negotiations in Geneva. The ATF, which is binding to all member-states of the WTO, will take effect in the middle of 2015 and is expected to result in major trade gains and savings in time and costs of export and import operations, customs clearance, transit passage and related trade measures. The Agreement would also benefit shipments to and from land-locked countries through adjacent countries, as well as countries or non-sovereign territories and those under foreign military occupation.
It is acknowledged that membership in the WTO does not require that candidates be sovereign states, but that they enjoy full autonomy in conducting their external trade relations and policies and in decisions within the competencies of the WTO. Based on these criteria, Hong Kong, Taiwan and Macau are Members of the WTO (WTO, 1994: Article 12, Paragraph 1). The State of Palestine/Occupied Palestinian Territory (OPT) has not been able to meet these membership conditions owing to the constraints imposed by the Paris Protocol (Khalidi, 2015). The Protocol allows the Palestinian Authority (PNA) to manage external trade only within a very limited scope and maintains the domination of the Israeli occupation over the Palestinian economy and its external trade. However, some analysts contend that Palestine has the right to become a full member of the WTO notwithstanding its lack of control over a significant part of its external trade (Cottier, 1997). Meanwhile, others affirm that the signing in 1997 of an Association Agreement between the European Union and the PNA (free trade agreement) covers goods outside the three lists specified in the Paris Protocol, which exempt certain Palestinian imports from the provisions of the Israeli trade regime. This is thought to pave the way for considering the OPT a “separate customs territory” since it has the ability to enter into international trade agreements and hence is entitled to accede to the WTO (Kanafani, 2000).
This study does not address the potential membership of Palestine in the WTO or the degree of its readiness to accede to the Organization. However, it focuses on the potential applicability of the ATF in the OPT, regardless of whether or not Palestine, which has been accorded Observer State Membership in the United Nations, is a party to the WTO Agreement. The study assesses the applicability of the ATF to Palestinian trade in light of international law, positions of international organizations and legal scholars. The question here relates to whether Israel, as theoccupying power and a party to the Agreement, is obliged to apply the ATF to Palestinian trade and how the provisions should be applied.
