PART I

INTERNATIONAL CONVENTION
on the
simplification and harmonization
of Customs procedures
(Kyoto, 18 May 1973)

Entered into force: 25 September 1974

TABLE OF CONTENTS

I. Text and Commentary
 Preambule
  
 Chapter I:
 Definitions (Article 1)
  
 Chapter II:
 Scope of the Convention and structure of the Annexes (Articles 2-5)
  Scope of the Convention (Article 2)
  Prohibitions or restrictions imposed under national legislation (Article 3)
  Structure of the Annexes (Article 4)
  Acceptance of the Annexes and entering of reservations (Article 5)
   
 Chapter III:
 Role of the Council and of the Permanent Technical Committee (Articles 6 and 7)
  
 Chapter IV:
 Miscellaneous provisions (Articles 8 and 9)
  Relationship between the body of the Convention and the Annexes (Article 8)
  Contracting Parties forming a Customs or Economic Union (Article 9)
  
 Chapter V:
 Final provisions (Articles 10-19)
  Settlement of disputes between Contracting Parties (Article 10)
  Signature, ratification and accession; acceptance of Annexes (Article 11)
  Entry into force (Article 12)
   Amending Supplement, April 1978]
  Territorial scope of the Convention (Article 13)
  Denunciation (Article 14)
  Procedure for amendment of the Convention and its Annexes (Articles 15 and 16)
  Amendments recommended by the Council (Article 15)
  Amendments decided on by the Council (Article 16)
  Acceptance of amendments already in force (Article 17)
  Notifications to be made by the Secretary General of the Council (Article 18)
  Registration and signature of the Convention (Article 19)
  
II.Entry into force
  Dates of entry into force
  Contracting Parties
  
III.Obligations of Contracting Parties as regards notifications
   
IV.Extensions

I. - Text and Commentary

Preamble

The Contracting Parties to the present Convention, established under the auspices of the Customs Co-operation Council,

Noting that divergences between national Customs procedures¹ can hamper international trade and other international exchanges,

Considering that it is in the interests of all countries to promote such trade and exchanges and to foster international co-operation,

Considering that simplification and harmonization of their Customs procedures can effectively contribute to the development of international trade and of other international exchanges,

Convinced that an international instrument proposing provisions which countries undertake to apply as soon as they are able to do so would lead progressively to a high degree of simplification and harmonization of Customs procedures, which is one of the essential aims of the Customs Co-operation Council,

Have agreed as follows:

CHAPTER I

Definitions ¹

Article 1

For the purposes of this Convention:

(a)the term "the Council" means the Organization set up by the Convention establishing a Customs Co-operation Council, done at Brussels on 15 December 1950;
(b)the term "Permanent Technical Committee" means the Permanent Technical Committee of the Council;
(c)the term "ratification" means ratification, acceptance or approval ².

CHAPTER II

Scope of the Convention and structure of the Annexes

Article 2

Each Contracting Party undertakes to promote the simplification and harmonization of Customs procedures¹ and, to that end, to conform, in accordance with the provisions of this Convention, to the Standards and Recommended Practices in the Annexes to this Convention.² However, nothing shall prevent a Contracting Party from granting facilities greater than those provided for therein, and each Contracting Party is recommended to grant such greater facilities as extensively as possible.³

Article 3

The provisions of this Convention shall not preclude the application of prohibitions or restrictions imposed under national legislation.¹ ² ³

Article 4

Each Annex to this Convention consists, in principle, of ¹:
(a)an introduction summarizing the various matters dealt with in the Annex ²;
(b)definitions of the main Customs terms used in the Annex ³;
(c)Standards, being those provisions the general application of which is recognized as necessary for the achievement of harmonization and simplification of Customs procedures.
(d)Recommended Practices, being those provisions which are recognized as constituting progress towards the harmonization and the simplification of Customs procedures, the widest possible application of which is considered to be desirable;
(e)Notes, indicating some of the possible courses of action to be followed in applying the Standard or Recommended Practice concerned.

Article 5

1. Any Contracting Party which accepts an Annex shall be deemed to accept all the Standards and Recommended Practices therein unless at the time of accepting the Annex or at any time thereafter it notifies the Secretary General of the Council of the Standard(s) and Recommended Practice(s) in respect of which it enters reservations, stating the differences existing between the provisions of its national legislation and those of the Standard(s) and Recommended Practice(s) concerned ¹ ². Any Contracting Party which has entered reservations may withdraw them, in whole or in part, at any time, by notification to the Secretary General specifying the date on which such withdrawal takes effect.

2. Each Contracting Party bound by an Annex shall at least once every three years review the Standards and Recommended Practices therein in respect of which it has entered reservations, compare them with the-provisions of its national legislation and notify the Secretary General of the Council of the results of that review.

CHAPTER III

Role of the Council and of the Permanent Technical Committee

Article 6

1. The Council shall, in accordance with the provisions of this Convention, supervise the administration and development of this Convention. It shall, in particular, decide upon the incorporation of new Annexes in the Convention¹.

2. To these ends the Permanent Technical Committee shall, under the authority of the Council, and in accordance with any directions given by the Council, have the following functions:
(a) to prepare new Annexes and to propose to the Council their adoption with a view to their incorporation in the Convention;
(b) to submit to the Council proposals for such amendments to this Convention or to its Annexes as it may consider necessary and, in particular, proposals for amendments to the texts of the Standards and Recommended Practices and for the upgrading of Recommended Practices to Standards;
(c) to furnish opinions on any matters concerning the application of the Convention²;
(d) to perform such tasks as the Council may direct in relation to the provisions of the Convention.

Article 7

For the purposes of voting in the Council and in the Permanent Technical Committee each Annex shall be taken to be a separate convention ¹.

CHAPTER IV

Miscellaneous provisions

Article 8

For the purposes of this Convention, any Annex or Annexes to which a Contracting Party is bound shall be construed to be an integral part of the Convention, and in relation to that Contracting Party any reference to the Convention shall be deemed to include a reference to such Annex or Annexes ¹.

Article 9

Contracting Parties which form a Customs or Economic Union may state by notification to the Secretary General of the Council that for the application of a given Annex to this Convention their territories are to be taken as a single territory¹. In each instance where, as a result of such notification, differences exist between the provisions of that Annex and those of the legislation applicable to the territories of the Contracting Parties, the States concerned shall enter a reservation to the Standard or Recommended Practice in question under Article 5 of the Convention ².

Commentary

Preface

¹ The expressions "Customs procedures" and " régimes douaniers " used in the English and French texts, respectively, must not be interpreted narrowly, as applying solely to Customs formalities or to procedure in its stricter sense. These expressions cover all rules concerning the treatment applicable to goods which are assigned a specific Customs destination. Under this broad interpretation, Annexes devoted to provisions attaching to the application of Customs procedures can be regarded as also falling within the context of the Convention.

Chapter I, Article 1

¹ The definitions of Customs terms necessary for the interpretation of the various Annexes have been inserted in the Annexes themselves.

² Definition of the term "ratification" facilitates the drafting of the final provisions of the Convention by avoiding the need to repeat the terms ratification, acceptance and approval in several Articles. It is nevertheless to be understood that the internal legal provisions of individual States concerning the conditions to be met before the competent national authorities may decide on the international instrument declaring the State's willingness to be bound remain applicable. The definition of ratification makes it possible for each State to choose the procedure it prefers for undertaking commitments at international level. It is noteworthy also that the definition given corresponds to the provisions of Article 2 (I) (b) of the Vienna Convention on the Law of Treaties of 23 May 1969.

Chapter II, Article 2

¹ The purpose of the Convention is to simplify and harmonize Customs procedures as a whole. On the basis of a provisional inventory by the PTC, a list has been drawn up of some thirty different Customs procedures, in the broad sense of the term, as employed for the purposes of this Convention (see the above commentary on the term "Customs procedures"). The Annexes dealing with these procedures will be progressively incorporated into the Convention

² Article 2 sets forth the principle that the Contracting Parties give a general undertaking to conform to the Standards and Recommended Practices set out in the Annexes. This undertaking does not mean that all the provisions of the Annexes will have to be applied by Contracting Parties forthwith. In fact, Contracting Parties are free to accept only a limited number of Annexes. They may also refrain from applying all the Standards and Recommended Practices contained in an Annex which they have accepted, provided that they enter appropriate reservations in respect of the provisions concerned.

³ The facilities provided for in the Annexes are the minimum facilities that the Contracting Parties undertake to grant.

Contracting Parties will not, therefore, be able to cite the provisions of the Convention as justification for withdrawing or limiting facilities granted hitherto under their national legislations.

Furthermore, States remain entirely free to provide in their national legislations for cases not expressly covered by the Convention.

Chapter II, Article 3

¹ The term "national legislation", used for the first time in Article 3 of the Convention, is to be taken to cover all provisions of general application enacted either by the legislature or by the executive and effective at the national level. The term is to be interpreted in this same way whenever it is used in the other provisions of the Convention.

² Contracting Parties have the right to apply all prohibitions and restrictions deriving from their national legislations, i.e. not only those based on considerations of public morality or order public security, public hygiene or health, or veterinary or phytopathological considerations, or relating to the protection of patents, trade marks and copyrights, but also those imposed on economic or any other grounds.

³ It may, however, be recommended, in any given Annex, that economic prohibitions or restrictions should be waived Where Contracting Parties have undertaken to apply the clause in a particular Annex providing for the non-application of economic prohibitions and restrictions, they cannot use Article 3 as justification for applying such prohibitions or restrictions (see also commentary (1) on Article 5 below).

Chapter II, Article 4

¹ As a rule, each Annex will contain the elements listed in Article 4, but this is not mandatory. Where it is considered preferable, some of them--such as the Notes or even the Recommended Practices--may be omitted. More-over, it is possible that all the Recommended Practices of a given Annex may later be converted into Standards (see (4) below).

² The Introduction gives a brief account of the economic and administrative reasons underlying the institution of the particular Customs procedure concerned, and describes its scope. It is not intended to impose special obligations on Contracting Parties, which are hence not required to accept it or to enter reservations in respect of its content.

³ Contracting Parties cannot enter reservations in respect of the definitions. Uniform application of the definitions is considered essential to achieve the harmonization of the Customs procedure to which the Annex relates.

The Standards and Recommended Practices have the same legal value in that the obligations deriving from the acceptance of these provisions by Contracting Parties are the same. However, it was considered preferable to adopt different designations for the two types of provisions, which differ mainly in the extent to which they can be expected to contribute towards the harmonization and simplification of Customs procedures.

Application of the Standards is recognized as necessary in order to achieve harmonization and simplification of the Customs procedure concerned-application of the Recommended Practices, on the other hand, is seen as a desirable means of progressing towards that aim.

To give a clearer picture of the respective scopes of the Standards and the Recommended Practices, they have been worded differently: the imperative mood has been used for the Standards, while the conditional was felt to be more appropriate for the Recommended Practices. As the Recommended Practices become generally accepted it will be possible to upgrade them gradually to Standards.

The Notes are not intended to specify the scope of the commitments of the Contracting Parties. They are intended only to assist Contracting Parties by describing some of the ways in which the Standards and Recommended Practices to which they relate may be applied in practice. They entail no particular obligations for the Contracting Parties, which need neither explicitly accept them nor enter reservations in respect of them.

Chapter II, Article 5

¹ Contracting Parties need not notify reservations where the non-application of a Standard or Recommended Practice results from the existence of prohibitions and restrictions based on considerations of public morality or order, public security, public hygiene or health, veterinary or phytopathological considerations, or considerations relating to the protection of patents, trade marks and copyrights.

On the other hand, if a Contracting Party which has accepted a particular Annex is unable to apply one or more provisions thereof by reason of the existence of prohibitions and restrictions other than those listed above (e.g. economic), it is bound to enter reservations in respect of such provisions. It need not, however, give details of the goods subject to these prohibitions and restrictions, as this would complicate the administration of the Convention to no purpose.

² The notification of differences between the national legislations of Contracting Parties and the provisions of the Annexes serves two purposes. It encourages Contracting Parties to modify their national legislations to bring them into line with the provisions of the Annexes, and it provides the Secretariat with the necessary facts for updating the information about the practical application of the Annexes in the territories of the Contracting Parties.

Chapter III, Article 6

¹ Whereas the administration and development of the other Council] Conventions have been reserved to the Contracting Parties, meeting together, in the present Convention this role has been assigned to the Council. In view of the particular nature and importance of the Convention, it was considered desirable to entrust its administration and development to a technical body possessing the necessary administrative machinery to carry out this task efficiently.

However, in order to avoid placing Contracting Parties that are not Members of the Council at a disadvantage, special provisions have been inserted in the Convention to associate them with the future work of the Council and the PTC in the development and administration of the Convention. Although these Contracting Parties do not have the right to vote at Council and PTC meetings, they are entitled to submit their comments on any proposed amendment to the Convention. They may even object to the adoption of amendments to the body of the Convention or to the definitions contained in the Annexes. (See below: Procedure for amendment of the Convention and its Annexes--Articles 15 and 16). Although the Convention makes no provision for participation by Contracting Parties that are not Council Members in the preparation of new Annexes, they will of course be invited, having regard to their manifest interest in the Convention, to all meetings whose agenda includes the preparation of a new Annex.

² The PTC may also furnish opinions on any matters concerning the application of the Convention, at the request either of the Contracting Parties or of the interested international organizations. If it thinks fit, the PTC may use the advance approval procedure provided for in Council Decision No. 174 of June 1968. This procedure is applicable to "drafts prepared by the PTC concerning, for example, opinions relating to the interpretation and application of Conventions on matters of Customs technique sponsored by the Council or relating to matters of Customs technique contained in other Conventions".

Chapter III, Article 7

¹ The fact that, for the purposes of voting, each Annex is to be taken to be a separate Convention implies that the provisions of the Council Convention concerning Members' voting rights apply to each Annex separately.

Thus, by virtue of the present Article 7, together with Article VIII of the Convention establishing the Council, each Member of the Council is entitled to one vote in voting on drafts of new Annexes.

It is pointed out that the insertion of a new Annex is not to be regarded as an amendment to the Convention. Provision for such insertions, which is made in Article 6, paragraph 1, cannot, therefore, be made by the amendment procedure prescribed in Article 15 or 16.

Article VIII of the Convention establishing the Council further specifies that a Member of the Council shall not have a vote on any question relating to the interpretation, application or amendment of any Convention which is in force and which does not apply to that Member.

This means that only Members of the Council that are Contracting Parties to the Convention will be entitled to vote on matters relating to the interpretation, application or amendment of the body of the Convention. As regards matters concerning an Annex which is already in force, only those Members of the Council that have accepted that Annex will have the right to vote. For Contracting Parties that are not Members of the Council, see commentary (2) on Article 15.

Finally, the conditions governing determination of the quorum and of the majority required for adoption of the drafts are the same as those prescribed in the Convention establishing the Council and in the Rules of Procedure both of the Council and of the PTC.

Chapter IV, Article 8

¹ The body of the Convention and the Annexes accepted by a given Contracting Party are to be regarded by that Contracting Party as constituting a single legal instrument.

Chapter IV, Article 9

¹ This notification must not be a general one but must relate to specified Annexes.

² This obligation to enter reservations was introduced to enable the Council Secretariat to inform all the Parties concerned of the situation with respect to application of the Annex in question in the territory of such Contracting Parties.

It should be noted that under Article 11, paragraph 7, the competent bodies of Customs or Economic Unions may become Contracting Parties to the Convention but are not entitled to vote.

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