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This book assesses Afghanistan’s transit trade with Pakistan in the context of WTO transit regime for landlocked countries and its impacts on Members’ regional transit agreements. The key questions this book seeks to answer are the extent Afghanistan can benefit from WTO transit rules in demanding freedom of transit through the territory of Pakistan, how these rules influence the transit agreement concluded between Afghanistan and Pakistan, and finally how useful it would be to challenge Pakistan under the WTO dispute settlement system for its failure to provide Afghanistan freedom of transit and free access to and from the sea.

Inhaltsverzeichnis

Frontmatter

Chapter 1. Legal Challenges Facing Afghanistan’s Transit Trade with Pakistan

Abstract
In order to compete successfully in international trade, a country needs to establish simple and convenient routes to access world markets. Looking at different trade routes, trade by sea is a preferred option providing short and economic means for the shipping of goods. Nearly 90% of the world’s trade accounts from trade by sea. Its popularity arises from the fact that it is not only cheaper in terms of transaction costs but also shorter in terms of transit time compared to overland trading. Therefore, the lack of direct access to the sea impedes the growth potential of landlocked countries in international trade. This particularly affects least-developed countries (LDC), as the majority of them are landlocked. If one wants to ensure, that overall goals such as international trade growth and development of LDC economies are achieved, freedom of transit and free access to and from the sea plays a vital role.
Suhailah Akbari

Chapter 2. Freedom of Transit of Landlocked Countries in Light of International Multilateral Agreements

Abstract
Transit is understood as the movement of goods and persons and freedom of transit is the unrestricted movement of goods and persons. Freedom of transit finds its legal roots in the natural law and the Roman principle of ‘servitude’. Advocates of natural law see freedom of transit in light of free access to the sea and believe that access to the high seas is a natural right of all nations and therefore landlocked States should enjoy the freedom of transit in order benefit from it, as free access to the sea can only be established where freedom of transit exists. Similarly, the ancient Roman legal principle of ‘servitude’ provides that the owner of property could enjoy all kinds of rights and actions on the land unless their exercise harmed the fundamental rights of the neighbor’s land.
Suhailah Akbari

Chapter 3. Current State of the Afghan Foreign Trade Legal Regime

Abstract
This chapter offers a descriptive analysis of the current state of the general pillars of Afghanistan’s foreign trade legal regime since the post-Taliban era. Section 3.1 provides a brief review of the Afghan economy and foreign trade development since the fall of the Taliban in the end of 2001. Section 3.2 focuses on laws and regulations governing the foreign trade of goods, mainly in the areas of export-import, customs procedure and other customs regulatory measures such as standards and technical regulations, sanitary and phytosanitary measures (SPS), rules of origin (RoO) and anti-dumping and countervailing measures. Section 3.3 examines laws and regulations governing foreign trade in services, primarily in areas of foreign investment, competition and State enterprise ownership (SEOs). Section 3.4 describes Afghanistan’s commercial dispute settlement regime. Section 3.5 describes Afghanistan’s route into international trade. Section 3.6 concludes the chapter.
Suhailah Akbari

Chapter 4. Afghanistan’s Transit Regime

Abstract
Afghanistan’s transit regime combines national, regional, and multilateral rules and regulations. This chapter reviews Afghanistan’s national and international transit regime and provides a selective study of its international transit agreements. It particularly focuses on APTTA and the Chabahar Agreement, due to their role in facilitating Afghanistan’s access to the sea. Section 1 of the chapter reviews Afghanistan’s national transit and transport laws and regulations. Section 2 discusses international plurilateral transit agreements concluded between Afghanistan and neighboring countries within the framework of regional economic organizations. Section 3 provides a comparative study of APTTA and the Chabahar Agreement and compares the legal advantages of the both agreements for Afghanistan’s freedom of transit and access to the sea through an assessment of their legal provisions.
Suhailah Akbari

Chapter 5. WTO Rules on Freedom of Transit

Abstract
The following chapter examines the WTO rules on freedom of transit contained in Article V GATT and Article 11 TFA and discusses the legal status of landlocked members thereunder. It specifically seeks to answer whether, and if so, how the WTO rules on freedom of transit shape the transit relationship between coastal and landlocked members inside and outside of transit agreements. Section I of the chapter assesses provisions of Article V GATT on freedom of transit, Section II the provisions on freedom of transit of Article 11 TFA, Section III the SDT provisions in the TFA and other WTO agreements, Sect. 5.3 tests the relationship of Article V GATT with Article 11 TFA and other WTO relevant rules and Sect. 5.4 concludes the chapter.
Suhailah Akbari

Chapter 6. WTO Law and Public International Law: Focus on UNCLOS Rules on Freedom of Transit of Landlocked States

Abstract
This chapter explores the relationship between WTO law and other sources of public international law with specific focus on the interaction between WTO rules on the freedom of transit and the UNCLOS rules on freedom of transit. In doing so, it particularly provides a comparative study of the UNCLOS rules on freedom of transit of landlocked State parties and assesses the possibility of WTO landlocked members to invoke their right in WTO dispute settlement proceedings.
Suhailah Akbari

Chapter 7. The Relationship Between Freedom of Transit and General and Security Exceptions Under WTO Rules

Abstract
Chapter 5 on WTO rules on the freedom of transit concluded that Article V GATT and Article 11 TFA impose an MFN obligation on WTO members to grant freedom of transit throughout their territories to traffic in transit. They further provide that any unnecessary restriction on the freedom of transit constitutes a violation of those provisions. However, the GATT embodies some general and security exceptions that allow members, if their conditions are fulfilled, to deviate from their GATT obligations including an obligation to grant free and unrestricted transit passage. These exceptions, set out in Articles XX and XXI GATT, support national trade policies and trade restrictive measures designed by members to protect, inter alia, life or health of humans, animals, plants; preserve the environment; secure compliance with national laws and safeguard their essential national security interests. Since the inception of the WTO, members frequently invoked these exceptions in order to justify their GATT inconsistent trade restrictive measures. There were 1118 QRs notified by members to the WTO as of May 2019, which 705 QRs or 75.1% notified QRs invoked Article XX GATT on general exceptions and 16.7% of them invoked Article XXI GATT on security exceptions. Similarly, members frequently invoked these exceptions before the WTO dispute settlement as a defense for prima facie violations of their GATT obligations.
Suhailah Akbari

Chapter 8. Implications of WTO Rules on Freedom of Transit and Security Exceptions for Afghanistan–Pakistan Transit Trade

Abstract
When Afghanistan obtained WTO membership, the main expectation was that the membership would help Afghanistan overcome its transit challenges with Pakistan, perhaps by challenging Pakistan in the WTO. This chapter assesses the implications of a WTO challenge against Pakistan’s transit ban and border closure measures. In doing so, it seeks to answer whether or not these measures can be justified under the GATT security exceptions and tries to set out the role APTTA security exceptions could play in the process. For this purpose, the chapter relies on the assessment carried out on in Russia – Traffic in Transit, a case presenting some similarities to the transit situation between Afghanistan and Pakistan. The chapter also tests the relationship of APTTA security exceptions with the GATT security exceptions and other regional trade agreements in force between Afghanistan and Pakistan, to examine how a dispute involving the mentioned transit challenges could be resolved when regional agreements provide conflicting provisions on these measures. For example, what happens if a fictitious Afghanistan-Pakistan regional agreement A contains a transit ban provision and another Afghanistan-Pakistan regional agreement B prohibits transit restrictions and further does not contain a general or security exception to certain measures otherwise inconsistent with that Agreement.
Suhailah Akbari

Chapter 9. Final Conclusions

Abstract
Throughout history landlocked States struggled to secure their rights to freedom of transit and free access to the sea by means of recognition through international conventions and multilateral agreements. This dissertation examined the WTO transit for landlocked countries, taking the landlocked LDC Afghanistan as a particular case study. In doing so, it discussed the recognition of the special transit needs of landlocked States by the WTO legal regime and provided a comparative study of the UNCLOS provisions on freedom of transit for landlocked countries.
Suhailah Akbari

Backmatter

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