This is a guest post from Nataliya Haletska, a PhD student at Ivan Franko Lviv National University, Ukraine
I am working on a paper regarding the possibility of bringing territorial disputes under the auspices of the WTO. Particularly, I came to conclusion that the annexation of the part of Ukrainian territory, Crimea, may be regarded as a breach of Russia’s WTO obligations. Please see for more details below.
In 2014 Russia has occupied a part of the territory of Ukraine, in particular, the peninsula of Crimea and officially joined it to Russian territory. Pursuant to the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War it appears that Russia may bear international responsibility for Crimea as the occupied territory. According to the Article XXVI:5(a) of the GATT 1994 “each government accepting this Agreement does so in respect of its metropolitan territory and of the other territories for which it has international responsibility”. Thus, it can be concluded that Russia is likely to be responsible for actions performed on the territory of Crimea under WTO law.
The occupation of Crimea by Russia arguably has caused certain trade barriers for Ukraine. According to publicly available resources Russia has applied its customs tariffs (particularly, Customs Tariff of the Customs Union) on the territory of Crimea. That means that goods transported from the continental territory of Ukraine to another part of the territory of Ukraine (the Crimean peninsula) have to be officially imported in compliance with Russia’s importation rules and with the payment of tariffs in accordance with the Russia’s customs tariff regime. Such action affected international trade regime of Ukraine, as it increased price of Ukrainian goods imported from the Crimean peninsula to other states (including Russia). Thus, Russia’s trade measures caused by the occupation of Crimea may be considered as a challenged measure.
Potentially, in my humble opinion, the challenged measure could be considered in violation of at least Article II and Article XI:1 of the GATT 1994. Article II of the GATT 1994 prohibits establishing new or increasing bound customs tariffs. The application of Russia’s tariff regime and creation of the de-facto customs border in the middle of the territory of Ukraine has made Ukrainian importers (even potential) pay a tariff for the importation of goods. Such actions can be considered as a breach of Article II of the GATT 1994. Consequently, the de-facto customs border between the continental territory of Ukraine and the Ukrainian territory-Crimean peninsula has resulted in the limitation in quantity of goods both exported from Ukraine and imported into Ukraine via Crimean peninsula. Thus, such actions may be considered as a breach of Article XI:1 of the GATT 1994. The main idea is that Russia is obliged to maintain Ukraine’s WTO-regime (i.e. no tariffs for Ukrainian goods) and not Russia’s WTO regime with respect to the territory of Crimea. Additionally, the non-violation complaint is also possible.
I would appreciate your comments.
