THE LAW OF REGIONAL ECONOMIC INTEGRATION IN THE AMERICAN HEMISPHERE J.H.H. Weiler University Professor, NYU Joseph Straus Professor of Law and European Union Jean Monnet Chair, NYU School of Law AND Sungjoon Cho Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology Primary Sources Copyright J.H.H. Weiler & S. Cho 2006 Primary Sources Table of Contents FOREWORD................................................................................................................................................ 2 NAFTA SUMMARY.................................................................................................................................... 3 NORTH AMERICAN FREE TRADE AGREEMENT*......................................................................... 41 THE GENERAL AGREEMENT ON TARIFFS AND TRADE .......................................................... 153 AGREEMENT ON TECHNICAL BARRIERS TO TRADE............................................................... 203 AGREEMENT ON THE APPLICATION OF SANITARY AND PHYTOSANITARY MEASURES .................................................................................................................................................................... 222 SOUTHERN COMMON MARKET (MERCOSUR) AGREEMENT................................................. 235 PROTOCOL OF OURO PRETO........................................................................................................... 254 PROTOCOL OF BRASILIA FOR THE SETTLEMENT OF DISPUTES ........................................ 268 PROTOCOL OF BUENOS AIRES ON INTERNATIONAL JURISDICTION IN DISPUTES RELATING TO CONTRACTS.............................................................................................................. 276 CARTAGENA AGREEMENT: OFFICIAL CODIFIED TEXT......................................................... 285 TREATY CREATING THE COURT OF JUSTICE OF THE CARTAGENA AGREEMENT (AMENDED BY THE COCHABAMBA PROTOCOL)....................................................................... 327 SUCRE PROTOCOL (DOCUMENT TO BE RATIFIED EXCEPT FOR ITS CHAPTER ON ASSOCIATE MEMBERS AND FIRST TRANSITORY PROVISION, WHICH ARE IN FORCE.) .................................................................................................................................................................... 336 ADDITIONAL PROTOCOL TO THE TREATY ESTABLISHING THE ANDEAN PARLIAMENT (DOCUMENT TO BE RATIFIED) ........................................................................................................ 341 NAFTA / WTO RESEARCH GUIDES .................................................................................................. 347 1 FOREWORD The importance of "primary sources" in researching on international trade law cannot be overemphasized. Black-letter laws (lex scripta) are more eloquent than one might easily imagine. They are also the very places that interpretation starts from. They even tell us about history and background of negotiations by leaving in themselves significant clues − sometimes, imperfections. In this context, this unit is devoted for providing such primary sources (treaties or agreements) relating to NAFTA, GATT (WTO) and MERCOSUR. Most sources are edited for your convenience, but it is highly recommendable to rely on a full text when you face such need. Fortunately, you can be served much by the Internet (Web-site) for this purpose. • WTO Agreement and other side agreements (including GATT): http://docsonline.wto.org/gen_browseDetail.asp?preprog=3 • NAFTA and two side agreements: www.nafta-sec-alena.org/english/index.htm or http://www.sice.oas.org/TRADEE.ASP#NAFTA • Mercosur: http://www.sice.oas.org/TRADEE.ASP#MERCOSUR/MERCOSUL Moreover, you must rely on other sources particularly for "dispute resolution". In terms of various panel decisions of NAFTA or GATT (WTO), you can consult the following web-sites. • GATT 1947 or WTO Panel (Appellate Body) decisions: http://www.wto.org/english/tratop_e/dispu_e/dispu_e.htm • NAFTA (US-Canada FTA) Panel decision: www.nafta-sec-alena.org/english/index.htm (Click "Decisions") or http://www.sice.oas.org/DISPUTE/nafdispe.asp The list of treaties and agreements in this unit is not exhaustive for your research purpose. You may take advantage of some private and public "search engine" (links) as follows. • FindLaw: www.findlaw.com/01topics/25interntrade/index.html • Wasserman Schneider & Babb: www.customs.com/links.html • USTR: http://www.ustr.gov/regions/whemisphere/naftalinks.shtml • Organization of American States: http://www.sice.oas.org/stidre.stm#HEM/REG • Yahoo: www.yahoo.com (Click "Law" ("Government") and then click again "Trade") In addition, you can use WESTLAW (www.westlaw.com) or LEXIS-NEXIS (also www.lexis.com/xchange) with the help of relevant keywords. (e.g., ILM: International Legal Material) Finally, for more research information especially for NAFTA, please refer to NAFTA / WTO Research Guides provided by the Harvard Law School Library. 2 NAFTA Summary Synopsis of the proposed North American Free Trade Agreement Prepared by THE GOVERNMENTS OF CANADA, THE UNITED MEXICAN STATES AND THE UNITED STATES OF AMERICA August 12, 1992 http://www.sice.oas.org/summary/RES_TLCE.asp INTRODUCTION This document provides a synopsis of the proposed North American Free Trade Agreement. On August 12, 1992, Canadian Minister of Industry, Science and Technology and Minister for International Trade Michael Wilson, Mexican Secretary of Trade and Industrial Development Jaime Serra and United States Trade Representative Carla Hills completed negotiations on a proposed North American Free Trade Agreement (NAFTA). Officials of the three governments have been directed to complete work on the final text of the Agreement as soon as possible. The final text will be made public when completed. The following description does not itself constitute an agreement between the three countries and is not intended as an interpretation of the final text. For ease of reference a summary of significant environmental provisions of the NAFTA is included at the end of this document. (…) PREAMBLE The Preamble to the NAFTA sets out the principles and aspirations on which the Agreement is based. It affirms the three countries' commitment to promoting employment and economic growth in each country through the expansion of trade and investment opportunities in the free trade area and by enhancing the competitiveness of Canadian, Mexican and U.S. firms in global markets, in a manner that protects the environment. The Preamble confirms the resolve of the NAFTA partners to promote sustainable development, to protect, enhance and enforce workers' rights and to improve working conditions in each country. OBJECTIVES AND OTHER OPENING PROVISIONS The opening provisions of the NAFTA formally establish a free trade area between Canada, Mexico and the United States, consistent with the General Agreement on Tariffs and Trade (GATT). They set out the basic rules and principles that will govern the Agreement and the objectives that will serve as the basis for interpreting its provisions. 3 The objectives of the Agreement are to eliminate barriers to trade, promote conditions of fair competition, increase investment opportunities, provide adequate protection for intellectual property rights, establish effective procedures for the implementation and application of the Agreement and for the resolution of disputes and to further trilateral, regional and multilateral cooperation. The NAFTA countries will meet these objectives by observing the principles and rules of the Agreement, such as national treatment, most-favored-nation treatment and procedural "transparency". Each country affirms its respective rights and obligations under the GATT and other international agreements. For purposes of interpretation, the Agreement establishes that the NAFTA takes priority over other agreements to the extent there is any conflict, but provides for exceptions to this general rule. For example, the trade provisions of certain environmental agreements take precedence over NAFTA, subject to a requirement to minimize inconsistencies with the Agreement. The opening provisions also set out a general rule regarding the application of the Agreement to sub-federal levels of government in the three countries. In addition, this section defines terms that apply to the whole Agreement, to ensure uniform and consistent usage. RULES OF ORIGIN NAFTA eliminates all tariffs on goods originating in Canada, Mexico and the United States over a "transition period". Rules of origin are necessary to define which goods are eligible for this preferential tariff treatment. This section of the Agreement is designed to: • ensure that NAFTA benefits are accorded only to goods produced in the North American region-not goods made wholly or in large part in other countries; • provide clear rules and predictable results; and • minimize administrative burdens for exporters, importers and producers trading under NAFTA. The rules of origin specify that goods originate in North America if they are wholly North American. Goods containing non-regional materials are also considered to be North American if the non-regional materials are sufficiently transformed in the NAFTA region so as to undergo a specified change in tariff classification. In some cases, goods must include a specified percentage of North American content in addition to meeting the tariff classification requirement. The rules of origin section also contains a provision