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The Practice and Case Law of Israel in Matters Related to International Law
Published online by Cambridge University Press: 04 July 2014
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On July 31, 1996, Israel and Canada signed a Free Trade Agreement in Toronto. This Agreement, which is the culmination of two years of negotiations, will — upon its forthcoming entry into force — set the framework for future trade between Israel and Canada. This is a significant step for Israel's trade: Canada's population, as of 1995, was 28.9 million; it is the seventh largest world market: in 1994, its export was $164.3 billion F.O.B. and its import was $151.5 billion C.I.F. The Canadian trade relies heavily on the United States, and a Free Trade Agreement is in force between the two since 1989.
Israel import from Canada totaled $216 million in 1995, most of which included sales of machinery and parts, aluminum, paper and paperboard, electrical equipment and parts, pulp of wood, cereals, sulphur and asbestos, optical measuring and checking equipment, wood and man-made staple fibers. That year, Israel export to Canada was $240.8 million, consisting mainly of diamonds, mechanical and electrical machinery and equipment. Like Canada, Israel has a free trade agreement with the United States. Since 1975, Israel has also had a free trade agreement with the European Community, which is, as of January 1,1996, replaced by the recently signed Association Agreement with the European Communities.
- Type
- Research Article
- Information
- Israel Law Review , Volume 30 , Issue 3-4: Reform of Criminal Law , Summer-Autumn 1996 , pp. 373 - 390
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1996
Footnotes
*
LL.M. candidate, Faculty of Law, The Hebrew University of Jerusalem. This section was prepared under the supervision of Dr. M. Hirsch of the Faculty of Law at the Hebrew University.
References
1 Free Trade Agreement between the Government of the State of Israel and the Government of Canada, (“the Free Trade Agreement”), as yet unpublished.
2 See section F.2, infra.
3 Canada -United States Free Trade Agreement, done at Ottawa, December 22, 1987, and January 2,1988, and at Washington D.C. and Palm Springs, December 23,1987, and January 2, 1988: (1988) 27 International Legal Materials; this agreement was extended in 1992 to include Mexico, thus creating the North American Free Trade Area (“NAFTA”): North American Free Trade Agreement Between The Government of Canada, the Government of the United Mexican States and the Government of the United States of America, done at Washington on December 8 and 17, 1992, at Ottawa on December 11 and 17, 1992, and at Mexico City on December 14 and 17, 1992: (1993) 32 International Legal Materials 289.
4 “Canada: An Economic Review and Sectors of Potential to Importation from Israel”, published by the Economic Department of the Israel Export Institute (Hebrew).
5 “The Canada-Israel Free Trade Agreement and the Canada-Israel Trade Relationship: What's it All About?”, published by the Canadian Embassy in Israel.
6 Agreement on the Establishment of A Free Trade Area Between the Government of the State of Israel and the Government of the United States of America, done at Washington, April 22,1985: (1985) 24 International Legal Materials 653; 24 K.A. (No. 972) 381.
7 The Agreement between the European Economic Community and the State of Israel was signed at Brussels, on May 11, 1975, O.J. L136 (28.5.1975); 24 K.A. (No. 822).
8 Euro-Mediterranean Agreement Establishing an Association between the European Communities and Their Member States, of the One Part, and the State of Israel, of the Other Part, signed at Brussels, November 20, 1995 (“the Association Agreement”). The Agreement and related documents were published by the Israel Information Center, Ministry of Foreign Affairs, Jerusalem. On this Agreement and, in particular, the replacement of the 1975 Agreement, see Giladi, R. M., “The Practice and Case Law of the State of Israel in Matters Related to International Law”, (1995) 29 Is. L.R. 720 CrossRefGoogle Scholar, at 736–737; see also Hirsch, M., “The 1995 Trade Agreement between the European Community and Israel: Three Unresolved Issues” (1996) 1 European Foreign Affairs R. 87.Google Scholar Israel has a Free Trade Agreement with the EFTA Countries: Agreement between the State of Israel and the EFTA States, signed at Geneva, 17 September 1992.
9 General Agreement on Tariffs and Trade 1994 (“GATT”), reproduced in “The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal Texts”, (The GATT Secretariat, Geneva, 1994) at 21; and Marrakesh Agreement Establishing the World Trade Organization, (“WTO”), ibid., at 5.
10 ibid.
11 Article 1.2.3.
12 Article 1.2.2.
13 Article 1.3.2. Compare with Article 6 of the Association Agreement, supra n. 8.
14 Article 2.3, which contains definitions applicable for the purpose of Chapter two, defines existing customs duty as “the rate of duty applicable to imports from the other Party on January 1, 1996”.
15 Article 2.3 defines the term customs duty.
16 The concept of originating goods will be examined below, when discussing the “Rules of Origin”, in section C.2, infra.
17 All Annexes to the Free Trade Agreement constitute an integral part thereof by the operation of Article 11.1 of the Agreement.
18 See Article 2.1.2(b).
19 Article 2.1.1.
20 Article 2.1.1(a).
21 See Article 2.1.1 and 2.1.2.
22 Article 2.3.
23 Article 2.2.1.
24 Article 2.2.3. On the forum for making such proposed modifications, see Article 5.12.3(b).
25 Compare to the rules of origin under NAFTA, and see Cantin, F.P. and Lowenfeld, A.F., “Rules of Origin, the Canada-U.S. FTA, and the Honda Case”, (1993) 87 Am. J. Inťl L. 375 CrossRefGoogle Scholar, at 385 et seq.
26 See Article 3.9.
27 Article 3.1(a), and defined in Article 3.13. Note that the Israeli-European Association Agreement also uses the criteria of ‘wholly obtained’ products; see Article 4 of Protocol 4 (“Protocol 4 Concerning the Definition of the Concept of Originating Goods’ and Methods of Administrative Cooperation”), the Association Agreement, supra n. 8.
28 Article 3.1(d). Both the terms ‘material’ and ‘non-originating good or material’ are defined in Article 3.13.
29 Annex 3.1 consists of a list of tariff items based on the Chapters, headings, sections and subheadings of the Harmonized System. In order to examine whether a specific good produced from non-originating materials qualifies as originating good, one has to verify that all the non-originating materials used in its production had in fact undergone the required tariff classification change. This can be done by finding the specific category of the list which includes the specific good: the rule applicable to that good (i.e. the specific requirements of tariff change and other requirements, where applicable) appears next to the list entry of that good.
30 Article 3.1(b). See also Article 3.10.1.
31 Article 3.1(c). See also Article 3.10.2.
32 Article 3.1(e). See also Article 3.11. This provision does not apply to all goods.
33 This is the case with accessories, spare parts and tools, indirect materials, and packaging and packing materials and containers, all dealt with by Article 3.3.
34 This de minimis rule appears in Article 3.2, but it does not apply to certain tariff items. The basis of calculation of the de minimis content of a good appears in Article 3.12. See also Annex 3.12.5. The Israeli-European Association Agreement contains a similar rule in Article 5, Protocol 4, supra n. 8.
35 The term is defined in Article 3.13; the rules applicable to these goods and materials are contained in Article 3.7. See also Annex 3.7.
36 The definition of this term appears in Article 3.13; the rules applicable to self-produced materials are contained in Article 3.8.
37 Article 3.4. Additionally, the status of a good exported from the territory of a Party as an originating good can be maintained only if it is shipped directly from the territory of that Party to that of the other Party (Article 3.5.1(a)) or, in the case of transhipment through the territory of a third State, if several conditions were met (Article 3.5.1(b)-(c) and Article 3.5.2). As to the separate entry into force of some of these provisions, see Articles 5.12.4 and 5.12.5.
38 At the moment, only the United States meets this description, see supra n. 6.
39 Article 3.6.
40 Article 5.12.1.
41 ibid.
42 Article 5.12.2.
43 Article 5.12.3.
44 These subjects are “further minor production in third countries of originating good with respect to specifically identified goods and specifically designated production processes, including minor processing and simple assembly of textile products” and “specific goods that undergo significant production in the territory of one of the Parties”. With regard to proposed modifications of rules of origin, see Article 5.12.8. See also the provision made for reviews in Article 11.5.
45 The obligation in this Article does not apply, however, to a few measures specified in Annex 4.1.
46 Article 4.2 and Article 4.3, respectively.
47 Titled “General Elimination of Quantitative Restrictions”.
48 The provisions of Article 4.4 do not, however, apply to the measures set out in Annex 4.1.
49 Article 4.5.1.
50 Article 4.5.1(b) sets out this criteria.
51 Article 4.5.1.
52 Article 4.5.2(c).
53 Article 4.5.2(a).
54 Article 4.5.2(b).
55 Article 4.5.2(d).
56 Article 4.5.3.
57 ibid. Compare with Article 23 of the Association Agreement, supra n. 8.
58 Article 4.6.1(a)-(b).
59 If the Parties agree, consultations held under this Article will be considered as consultations which satisfy preconditions for the initiation of institutional procedures. See Articles 8.6 and 8.7, and section E.3, infra. Other matters regulated by Chapter 4 are the prohibition on the maintenance or adoption of export tax or charge (Article 4.7; this rule does not apply to measures set out in Annex 4.1.) and the reciprocal facilitation of temporary entry for businesspersons (Article 4.8). Note also that the Working Group on Rules of Origin and Other Customs Related Market Access Issues established under Article 5.12 is assigned with certain functions relating to Chapter Four, and that Article 5.12 also regulates proposed additions to, and modifications and reviews of Chapter Four and matters arising therefrom.
60 Specifically, the Agreement on Government Procurement, Annex 4 of the WTO Agreement, from the date it will enter into force with respect of the Parties.
61 Article 7.1.3. Compare Article 7.1 with the more effective Article 36 of the Association Agreement, supra n. 8.
62 Both terms are defined in Article 7.4.
63 Article 8.1.1 and Annex 8.1.
64 Article 8.1.2.
65 Article 8.1.3.
66 Article 8.1.1.
67 Article 8.2.2.
68 Article 8.2.1.
69 Article 8.2.3.
70 Articles 8.2.4–5.
71 It should be noted that not all Article 8.5 duties are stringent, in that some apply “to the extent possible”.
72 As in Article 4.9: see text accompanying n. 59, supra.
73 Article 8.6.2.
74 Pursuant to Article 8.7.1, the Commission will convene within twenty days after delivery of a request — unless otherwise agreed.
75 Article 8.7.2.
76 Article 8.9.2.
77 This Annex specifies the procedure of and criteria for choosing individuals for the roster of panelists; their remuneration and expenses; the composition of panels; the appointment of panelists and the panel's chairperson: the handing of separate opinions by panelists; the subjection of panelists to a Code of Conduct (in that respect, see also Article 8.8); the removal and disqualification of panelists and other matters relative to the establishment and operations of the panels.
78 Article 8.9.3.
79 Another ‘default’ mechanism is contained in Annex 8.9, with regard to the appointment of panelists and, to a lesser extent, the appointment of the panel's chairperson.
80 Article 8.9.5.
81 Article 8.9.6–8.
82 Article 8.9.9. Failure to agree may entitle the Party to unilaterally suspend benefits — see Article 8.9.10.
83 Compare with the Dispute Settlement procedures in Article 19 of the Israel-U.S. Free Trade Agreement, supra n. 6.
84 As interpreted by the Parties — see Article 10.1.
85 Articles 10.2–5.
86 Article 11.3. But see Articles 5.12.4 and 5.12.5.
87 Article 11.5.
88 See for example, Article 2.2.3 and Article 5.12.
89 This list was kindly provided by Ms. Hemda Golan, Deputy Legal Advisor and Director of the Treaty Division, and by Ms. Rina Assaf of the Treaty Division, Israel Ministry of Foreign Affairs, Jerusalem.