These days trade faciltiation is an oft-repeated mantra in WTO circles, including by the DG candidates. But there is little commentary to be found by civil society groups on these negotiations or the draft texts (the latest, from the end of March can be found here: http://bit.ly/XXyaEA.) One of the few studies is an IISD paper on trade facilitation and timber and wildlife. it is available here http://bit.ly/17XMMaX.
Trade facilitation sounds like a nice idea. Hard to be against streamlining customs procedures and preventing their protectionist abuse. On the other hand, effective control of the border is vital to the effectiveness of regimes such as the news arms trade treaty and CITES, to name two examples. Through technological innovation (IT and new scanning/inspection methods), regulatory cooperation and exchange of information, and improved training and professionalism of customs personnel, one could imagine a win-win, where innocent goods move more smoothly through the border allowing more attention to be paid to stopping bad ones. But many of these initiatives cannot easily be commanded through legal rules enforced in dispute settlement. In the case of developing countries, they seem more in the remit of multilateral development banks and other agencies concerned with development, state-building and the rule of law rather than that of the WTO.
As for protectionist abuse, the existing rules of the GATT, TBT and SPS already provide significant disciplines. The question then is whether trade facilitation is going beyond those such as to open a new front of attack against domestic policy place (after all, many of the measures where the demand for policy space is hard-fought depend signficantly on effective enforcement at the border.)
I've only begun to study the most recent negotiating draft, but it seems unclear on the overall relationship between the trade facilitation text and the GATT, including Article XX. Some provisions make it clear that they are subject to the right to regulate in the existing WTO Treaties including Article XX-and others don't. One provision that deserves following carefully concerns risk management and the way in which Members may determine that goods are "high risk" and therefore apply more intense or extensive customs controls to such goods. The criteria in the current draft seem to make sense and allow for appropriate poilcy space, but the provision also seems to open up the possibility of claims of discrimination (which could include de facto discrimination) in the way that Members operate risk management. It will be important to see how this part of the draft evolves. I would say the same about the language on "alerts", which governs the ability of Members to impose emergency controls to address urgent food safety risks, for example. The least-trade-restrictiveness requirement here are the role of science deserve scrutiny, and the relationship to the existing provisions in SPS.
Also I wonder about the requirement that technical regulations or quality controls not be applied to goods in transit. Would this interfere with the ability to intercept goods in transit the trade of which is restricted or prohibited under international agreements? And what of goods that present high health, safety, enviornmental risks even by virtue of their being transported through the territory of a Member? Some of the provisions in the section of the draft text on freedom of transit are subject to the exceptions in the GATT, but it is unclear to me at least that Article XX could be invoked in respect of the provision on non-application of technical regulations or quality controls.
More generally, there is a lack of balance in the current draft, in that it does not address at all the responsibilities of both exporting and importing states for having proper controls to stop trade in dangerous goods, or goods that trade of which is prohibited or restricted under international agreements (CITES, etc). Some years ago, developing countries were raising in the WTO the issue of domestically prohibited goods, and substandard goods being sent to developing countries without notice. Could not the trade facilitation agreement include a clause that requires a system of notification or warning such that where the exporting country's authorities is aware of such shipments, they would place the authorities of the importing country on alert? Such a provision could be added to the information exchange provisions in the section on customs cooperation.
In addition, there could be a clause in the trade facilitation agreement that requires WTO Members to take effective measures in their customs systems to prevent or control the export or import of goods the trade in which is prohibited or restricted under multilateral agreements. A list of such agreements could then be annexed (including CITES, the new arms trade treaty, the Basel Convention on hazardous wastes, etc.)
These are just some thoughts based on a quite preliminary examination of the current draft text. I'll be doing some research and writing on trade facilitation over the next few months. Look forward to reactions.