Skip to main content
SpringerLink
Log in

The WCO’s Framework of Standards and the Internationalization of Supply Chain Security

  • Chapter
  • First Online:
European Yearbook of International Economic Law 2014

Part of the book series: European Yearbook of International Economic Law ((EUROYEAR,volume 5))

  • 1103 Accesses

Abstract

2013 marks the tenth anniversary of the founding of the Customs and Border Protection Bureau (hereinafter “CBP”) of the United States. CBP was created in direct response to the terrorist attacks on the World Trade Center in New York on 11 September 2011. It therefore symbolizes another very important function of customs, namely the protection of the international supply chain against terrorist attacks and other illicit activities. Nowadays, this function is referred to collectively as “supply chain security” and is implemented according to the SAFE Framework of Standards to Secure and Facilitate Trade administered by the World Customs Organization.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 129.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 169.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 169.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

  1. 1.

    See the official website of the Customs and Border Protection Bureau, which offers an interactive “history guideline” and an organizational chart. On the creation of CBP, see Laden, The Genesis of the US C-TPAT Program: Lessons Learned and Earned by the Government and Trade, World Customs Journal 1 (2007) 2, p. 75. Available online at http://www.worldcustomsjournal.org/media/wcj/-2007/2/the_genesis_of_the_us_c-tpat_program_lessons_learned_and_earned_by_the_government_and_trade.pdf.

  2. 2.

    SAFE Framework of Standards to secure and facilitate global trade, 2012. Available at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/safe_package.aspx.

  3. 3.

    Decision of the US–EU Joint Customs Cooperation Committee of 4 May 2012 regarding mutual recognition of the Customs-Trade Partnership against Terrorism programme in the United States the Authorised Economic Operators Programme of the European Union; O.J L 144/44, 5 June 2012; http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:144:0044:0047:EN:PDF.

  4. 4.

    The United States recognizes this fact in Sec. 204 (b) of the SAFE Port Act 2006 (H.R. 4954), which seeks to ensure that minimum standards and procedures for security containers in transit to the United States do not violate its international trade obligations or other international obligations.

  5. 5.

    United Nations Security Council Resolution 1373 adopted by the Security Council at its 4385th meeting, on 28 September 2001 (S/RES/1373). Available online at http://www.unodc.org/pdf/crime/terrorism/res_1373_english.pdf.

  6. 6.

    See WTO Appellate Body, WT/DS33/AB/R, United States – Measure affecting imports of woven wool shirts and blouses from India (US – Wool Shirts and Blouses), p. 15. Available online at http://www.wto.org/english/tratop_e/dispu_e/33abr.pdf.

  7. 7.

    Indeed, this is precisely the fear some WTO members expressed soon after CBP announced its security measures.

  8. 8.

    See Grainger: Supply Chain Security: Adding to a Complex Operational and Institutional Environment, World Customs Journal 1 (2007) 2, p. 17. Available online at http://www.worldcustomsjournal.org/media/wcj/-2007/2/supply_chain_security_adding_to_a_complex_operational_and_institutional_environment.pdf.

  9. 9.

    The Vienna Convention on the Law of International Treaties 1969 codifies principles of customary international law. Art. 26 “Pacta sunt servanda” states “Every treaty in force is binding upon the parties to it and must be performed by them in good faith”. Available online at http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf.

  10. 10.

    GATT Panel, L/6439 – 36S/345, United States – Section 337 of the Tariff Act of 1930 (“US-Section 337”), para. 5.26. Available online at http://www.wto.org/english/tratop_e/dispu_e/87tar337.pdf.

  11. 11.

    See GATT Panel, DS21/R – 39S/155, United States – Restrictions on Imports of Tuna (“US – Tuna I”), para. 5.28. The requirement of “necessity” obliged member states to undertake multilateral negotiations in respect of transboundary objects of protection. Available online at http://www.worldtradelaw.net/reports/gattpanels/tunadolphinI.pdf.

  12. 12.

    See Flynn, America the Vulnerable: How Our Government is Failing to Protect Us from Terrorism, pp. 16 – 29. See United States Senate Permanent Sub-Committee on Investigations, Committee on Homeland Security and Governmental Affairs: An Assessment of US Efforts to Secure the Global Supply Chain, Prepared by the Majority and Minority Staff of the Permanent Subcommittee on Investigations, 2006, pp. 3–5. Available online at http://www.hsdl.org/?view&did=464168; concerning the variety of threats in the maritime domain, see also The National Maritime Security Strategy, pp. 4–6. Available online at http://georgewbush-whitehouse.archives.gov/homeland/maritime-security.html#section2; the results of the port war-game scenario carried out by a leading consultancy company also proved influential; see Gerencser et al., Hamilton, Port Security War Game: Implication for US Supply Chains, October 2002. Available at http://www.seaaway.com/src/bin/PortSecurityWarGame.pdf.

  13. 13.

    CBP derives its authority from Article I, Section 8, Clause 3 of the Constitution of the United States, which grants Congress the power to regulate commerce with foreign nations. This power is delegated to US Customs, which was created by statute in 1790. Although its powers are limited to the US border, it has considerable enforcement powers. For example, in United States v. Ramsey, 431 US Supreme Court 606 (1977), pp. 616–619, the court held that it was reasonable under the Fourth Amendment for the court to perform border searches without probable cause or a warrant. For a detailed summary and further references, see Dallimore, Securing the Supply Chain: Does the Container Security Initiative Comply with WTO Law?, (Inaugural Dissertation, Westfälische Wilhelms-Universität zu Münster), 2008, pp. 97–102.

  14. 14.

    For an account of the aftermath of 9/11 from a customs perspective, see Seventh public hearing of the National Commission on Terrorist Attacks Upon the United States 26 January 2004 (testimony of Robert C. Bonner, U.S. Commissioner for Customs). Available online at http://govinfo.library.unt.edu/911/hearings/hearing7/witness_bonner.htm.

  15. 15.

    See Laden, The Genesis of the US C-TPAT Program: Lessons Learned and Earned by the Government and Trade, World Customs Journal 1 (2007) 2, p. 75. Available online at http://www.worldcustomsjournal.org/media/wcj/-2007/2/the_genesis_of_the_us_c-tpat_program_lessons_learned_and_earned_by_the_government_and_trade.pdf.

  16. 16.

    Functions not connected with revenue collection were transferred from the Secretary of the Treasury to the Secretary of Homeland Security under Sec. 403 (1) of the Homeland Security Act 2002.

  17. 17.

    Romero, Prevention of Maritime Terrorism: The Container Security Initiative, CHI. J. INT’L L. 4 (2003) 2, p. 597 (describing the CSI as “an excellent illustration of contemporary evolving preventative legal strategies in the international arena”).

  18. 18.

    For the current mission of CBP, see US Customs and Border Protection Fiscal Year 2009–2014 Strategic Plan, p. 4. The first goal of the agency is still border protection (p. 10). The plan is available online at http://www.cbp.gov/xp/cgov/about/.

  19. 19.

    For example, in 2005 U.S. Customs had introduced a policy of “informed compliance”, and the Business Alliance for Secure Commerce (BASC) was introduced in 1996 as a partnership between customs and the private sector to combat the smuggling of narcotics. In addition, the United States has concluded over 60 mutual legal assistance treaties (MLATs) with other states in order to combat transnational crime (e.g., Agreement on Mutual Legal Assistance between the European Union and the United States of America, 19 July 2003, O.J., L 181/34).

  20. 20.

    Concerning the role of customs administrations following 9/11, see Mikuriya Supply Chain Security: The Customs Community’s Response, World Customs Journal 1 (2007) 2, p. 51. Available online under http://www.worldcustomsjournal.org/media/wcj/-2007/2/supply_chain_security_the_customs_communitys_response.pdf.

  21. 21.

    E.g., in order to protect company secrets and prevent pilfering of valuable shipments.

  22. 22.

    Containers are termed “twenty foot equivalent units” (“TEU”) in reflection of the fact that this is the standard measurement. The standard container is twenty feet in length and can hold approximately 10 tonnes of dry cargo. The largest container ship today can transport 16,000 containers (and the Triple E due to enter service in 2013 can carry 18,000).

  23. 23.

    CBP, Container Security Initiative in Summary, 2011, p. 2.

  24. 24.

    See Homeland Security: Finding the Nuclear Needle in the Cargo Container Haystack, Hearing before the Sub-Committee on National Security, Veterans Affairs and International Relations of the Committee on Government Reform, House of Representatives 107th Congress, 18 November 2002. Available online at http://www.gpo.gov/fdsys/pkg/CHRG-107hhrg87868/pdf/CHRG-107hhrg87868.pdf. Or, as one security expert imaginatively commented after 9/11. “[B]order control remains the enforcement equivalent of trying to catch minnows at the base of Niagara Falls”. See Stephen Flynn, America the Vulnerable, p. 2.

  25. 25.

    See, e.g., The United Nations, A More Secure World, Our Shared Responsibility, Report of the High Level Panel on Threats, Challenges and Change, 2004, p. 14. Available online at http://www.un.org/secureworld/report2.pdf.

  26. 26.

    Following 9/11, it became clear that CBP had little knowledge of how the supply chain worked. See Laden, The Genesis of the US C-TPAT Program: Lessons Learned and Earned by the Government and Trade, World Customs Journal 1 (2007) 2, p. 75 (77).

  27. 27.

    After 9/11, U.S. Customs therefore performed inspections on all inbound traffic. However, it found that its resources only allowed it to inspect no more than 20 per cent of inbound cargo. In addition, such intensity of inspections would be impossible to sustain indefinitely, especially considering the range of tasks that Customs must perform. Concerning other enforcement activities of Customs post 9/11, see Bonner, Statement before the Hearing on U.S. Customs FY 2003 Budget Request House Appropriations Committee Subcommittee on Treasury, Postal Services, and General Government, 27 February 2002.

  28. 28.

    Moreover, increased physical inspection of containers restricted trade and proved “economically intolerable”, especially in view of the fact that the majority of inbound cargo was legitimate. See Loy and Ross, Global Trade: America’s Achilles’ Heel, Defense Horizons (2002) 7, p. 5. Available online at http://www.ndu.edu/CTNSP/docUploaded/DH07.pdf; see also Bonner, Remarks to the Trade Support Network, 9 October 2002 [hereinafter U.S. Customs Commissioner, Remarks of 9 October 2002] (“[I]nspecting every container would be wasteful and make no sense, because most containers pose no security risk.”). Available online at http://www.cbp.gov/xp/cgov/trade/automated/modernization/trade_support_network/session_highlights/session_archives/october_2002_meeting/bonner_speech.xml.

  29. 29.

    An Act to extend the Andean Trade Preferences Act, to grant additional trade benefits under that Act, and for other purposes, H.R. 3009, 6 August 2002.

  30. 30.

    For an analysis of the effects of the rule, see Blegen, US Importer Security Filing: Advance Electronic Data Under the SAFE Framework Meets the Real World, World Customs Journal 3 (2009) 1. Available online at http://www.worldcustomsjournal.org/media/wcj/-2009/1/Blegen.pdf.

  31. 31.

    See Government Accountability Office (GAO), Testimony before the Subcommittee on Oversight and Investigations, Committee on Energy and Commerce, House of Representatives, Homeland Security: Preliminary Observations on Efforts to Target Security Inspections of Cargo Containers, Statement of Richard M. Stana, p. 4 ff. Available online at http://www.gao.gov/assets/120/110543.pdf.

  32. 32.

    It was announced by Robert C. Bonner in his Speech before the Centre for Strategic and International Studies (CSIS) Washington, D.C., 17 January 2002.

  33. 33.

    For a description of the contents, effect, and legal status of the declarations, see Dallimore, Navigating Uncharted Waters: Does the Container Security Initiative Comply with WTO Law? Inaugural Dissertation, University of Münster, 2008, pp. 80–85. Available online at http://miami.uni-muenster.de/servlets/DerivateServlet/Derivate-4781/diss_dallimore.PDF.

  34. 34.

    See Container Security Initiative In Summary, May 2011, U.S. Customs and Border Protection. Available under http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/csi/csi_brochure_2011.ctt/csi_brochure_2011.pdf.

  35. 35.

    See GAO, Preliminary Observations on Efforts to Target Security Inspections of Cargo Containers, p. 3.

  36. 36.

    Concerning the concept of “pushing the borders outwards”, see Seventh public hearing of the National Commission on Terrorist Attacks Upon the United States 26 January 2004 (testimony of Robert C. Bonner, U.S. Commissioner for Customs).

  37. 37.

    See Seghetti et al., CRS Report for Congress, Border and Transportation Security: Selected Programs and Policies, 29 March 2005, p. 6. Available online at http://www.fas.org/sgp/crs/homesec/RL32840.pdf.

  38. 38.

    According to CBP, its officers are permitted to observe the inspections and document the results. However, the host customs authority may decide to deny an inspection, in which case the CSI team must mark the container for inspection on arrival at the U.S. port.

  39. 39.

    See Assessment of US Efforts to Secure the Global Supply Chain, p. 9.

  40. 40.

    For a description of supply chain visibility from the point of view of customs and business, see Widdowson and Holloway, Maritime Transport Security Regulation: Policies, Probabilities and Practicalities, WCJ 3 (2009) 2, p. 25. Available online at http://www.worldcustomsjournal.org/media/wcj/-2009/2/WCJ_V3N2_Widdowson_Holloway_%28web%29.pdf.

  41. 41.

    See The National Strategy for Maritime Security, p. 19.

  42. 42.

    As of April 2013, C-TPAT had 10,512 certified partners, the majority of which were US importers (4,338) and foreign manufacturers (1,297). See C_TPAT Program Achievements, CBP, April 2013. Available online at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_news_reports/ctpat_achieve_report13.ctt/ctpat_achieve_report13.pdf.

  43. 43.

    C-TPAT Strategic Plan 2004, p. 7. Available online at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_program_information/what_is_ctpat/ctpat_strat_plan.ctt/ctpat_strat_plan.pdf.

  44. 44.

    According to Sec. 212 SAFE Port Act 2006, membership is open to “Importers, customs brokers, forwarders, air, sea, land carriers, contract logistics providers, and other entities in the international supply chain and intermodal transportation system”. However, CBP has announced plans to extend the program to US exporters in the near future.

  45. 45.

    See Sec. 214 – 216 SAFE Port Act 2006.

  46. 46.

    The criteria under Sec. 213 (A)–(G) of the SAFE Port Act relate to business partner requirements, container security, physical security and access controls, personnel security, procedural security, security training and threat awareness, and information technology security.

  47. 47.

    See Supply Chain Security Risk Assessment, Frequently Asked Questions (FAQ), http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_partners/scra/supply_chain_assess_faq.ctt/supply_chain_assess_faq.pdf.

  48. 48.

    The security guidelines include personnel, physical, and procedural security; access controls; education, training, and awareness; manifest procedures; conveyance security; threat awareness; and documentation processing. See C-TPAT Strategic Plan 2004, p. 18.

  49. 49.

    The review must be completed within 90 days. See CBP Supply Chain Annual Security Profile Review (Formerly Self Assessment) Frequently Asked Questions 12/13/2010, p. 1. Available online at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_partners/spri/annual_sec_prof_review_faq.ctt/annual_sec_prof_review_faq.pdf.

  50. 50.

    C-TPAT Strategic Plan 2004, Strategic Goal 2, p. 12.

  51. 51.

    An overview of the benefits granted by C-TPAT can be found in CBP, Customs-Trade Partnership Against Terrorism: A Guide to Program Benefits. Available at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_program_information/what_is_ctpat/ctpat_prog_benefits_guide.ctt/ctpat_prog_benefits_guide.pdf.

  52. 52.

    C-TPAT Strategic Plan, 2004, p. 8.

  53. 53.

    See United States Senate Permanent Sub-Committee on Investigations, Committee on Homeland Security and Governmental Affairs: An Assessment of US Efforts to Secure the Global Supply Chain, Prepared by the Majority and Minority Staff of the Permanent Subcommittee on Investigations, 2006. Available online at http://www.hsdl.org/?view&did=464168.

  54. 54.

    As amended by the Implementing Recommendations of the 9/11 Commission Act (IRCA), H.R. 1, 3 August 2007.

  55. 55.

    See Nguyen, Changes to the role of US Customs and Border Protection and the impact of the 100% container scanning law, World Customs Journal 6 (2012) 2, p. 109 (111 ff.). Available online at http://www.worldcustomsjournal.org/media/wcj/-2012/2/Nguyen.pdf. See also the Letter from the Secretary of Homeland Security to the Honourable Peter T. King, 2 May 2012. Available online at http://aapa.files.cms-plus.com/100%25%20Scanning%20Waiver1.pdf.

  56. 56.

    The statutory deadline for the entry into force of this provision was extended in 2012 by the Homeland Security Secretary and is now due to enter into force by 2014. See Letter from the Secretary of Homeland Security to the Honourable Peter T. King, 2 May 2012.

  57. 57.

    It is significant that the SMART Port Act of 2012 recasting the SAFE Port Act 2006 did not contain any amendment to the 100% scanning requirement: see the “Securing Maritime Activities through Risk-based Targeting for Port Security Act” (“SMART Port Act”) H.R. 4251, 29 June 2012. Available online at http://beta.congress.gov/bill/112th-congress/house-bill/4251/text.

  58. 58.

    See US Customs and Border Protection Fiscal Year 2009–2014 Strategic Plan, pp. 4 & 6.

  59. 59.

    WCO, Compendium of Authorised Economic Operator Programmes, 2012 edition, p. 7.

  60. 60.

    This and all other AEO-related documents are available on the website of DG Taxud: http://ec.europa.eu/taxation_customs/customs/policy_issues/customs_security/aeo/.

  61. 61.

    Art. 14b(2)–(4) CCIP.

  62. 62.

    For example, the need to match EU EORI (Economic Operators Registration and Identification) and the US MID (Manufacturers’ Identification) numbers in order to exchange relevant data on the AEOs holding a certificate with the safety and security component.

  63. 63.

    See Advisory Committee on Commercial Operations of Customs and Border Protection (COAC), Global Supply Chain Security Land Border Subcommittee, Office of Field Operations (OFO) Customs-Trade Partnership against Terrorism (C-TPAT), July 31, 2012. Available online at http://www.cbp.gov/linkhandler/cgov/trade/trade_outreach/coac/coac_12_meetings/dec42012/global_report.ctt/global_report.doc.

  64. 64.

    See Article 14b (3) CCIP; for a comparison of the benefits offered by all security programs, see WCO, Compendium of Authorised Economic Operator Programmes (2012 edition), pp. 22 and 38. Available online at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/safe_package.aspx.

  65. 65.

    Further information on the benefits available can be found in CBP/Taxud, US/EU Mutual Recognition Program, Frequently Asked Questions (FAQ). Available at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_program_information/international_efforts/eu_faq.ctt/eu_faq.pdf.

  66. 66.

    See CBP, C-TPAT: A Guide to Program Benefits, p. 2; C-TPAT Strategic Plan 2004, p. 23 (suggesting that expedited processing is not solely dependent on C-TPAT participation). See, e.g., Art. 1.(a) of the Decision No. 1/2010 of the Joint Customs Cooperation Committee of 24 June 2010 regarding mutual recognition of Authorised Economic Operators programmes in the European Union and Japan, O.J. L279/71, 23 October 2010. Available online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:279:0071:0073:EN:PDF.

  67. 67.

    See Laden, The Genesis of the US C-TPAT Program: Lessons Learned and Earned by the Government and Trade, World Customs Journal 1 (2007) 2, p. 75 (77). See also CBP, C-TPAT Program Achievements, 1 April 2013. Available online at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_news_reports/ctpat_achieve_report13.ctt/ctpat_achieve_report13.pdf.

  68. 68.

    The EU has not published any official statistics of the AEO program. A search for AEO-S/AEO-F holders on the AEO database reveals 2049 in Germany (the largest European exporter), followed by 966 in the Netherlands, and then France with 622. Strikingly, the UK has only 267 holders of AEO-S/AEO-F despite the close trading links (and “special relationship”) between the two countries. The AEO database is available online at http://ec.europa.eu/taxation_customs/dds2/eos/aeo_consultation.jsp?Lang=en.

  69. 69.

    For example, the third goal of C-TPAT is to establish international standards; see also the National Maritime Security Strategy of the United States National Maritime Security Strategy of the United States 2005, p. 14. Available online at http://www.ise.gov/sites/default/files/0509%20National%20Strategy%20for%20Maritime%20Security.pdf.

  70. 70.

    E.g., the International Maritime Organisation amended the International Convention for the Safety of Life at Sea Convention 1974 (SOLAS) to incorporate (in Chapter IX-2 “Special Measures to enhance maritime security”) the International Ship and Port Facility Security Code (ISPS) 2004, which provides for antiterrorist measures in the maritime domain. Moreover, the Suppression of Unlawful Acts against the Safety of Maritime Navigation 1988 (“SUA” Convention) also refers in its preamble to the “world-wide escalation of terrorism in all its forms”. The United Nations Security Council issued Resolutions 1373 of 28 September 2001 and 1456 of 20 January 2003 obliging states to cooperate in combating terrorism. Moreover, the Cooperative G8 Action on Transport Security, 26 June 2002 aimed to cooperate with international organizations to “develop and implement an improved global container regime”.

  71. 71.

    The SAFE Framework 2012 is available online at http://www.wcoomd.org/en/topics/facilitation/instrument-andtools/tools/~/media/55F00628A9F94827B58ECA90C0F84F7F.ashx. For an overview of the process leading to the creation of the SAFE Framework concerning the role of customs administrations following 9/11, see Mikuriya, Supply Chain Security: The Customs Community’s Response, World Customs Journal 1 (2007) 2, p. 51 f. Available online under http://www.worldcustomsjournal.org/media/wcj/-2007/2/supply_chain_security_the_customs_communitys_response.

  72. 72.

    SAFE Framework 2012, p. 2 at para. 1.1.

  73. 73.

    SAFE Framework 2012, p. 3 at para. 1.3.

  74. 74.

    The Secretary General describes capacity building through the Columbus Program as a “vital part of the SAFE implementation strategy”. See Introduction by Kunio Mikuriya, Secretary General of the WCO, SAFE Framework 2012.

  75. 75.

    SAFE Framework 2012, p. 7 at para. 3.

  76. 76.

    See SAFE Framework 2012, pp. 5 – 6 at para. 2.2.

  77. 77.

    SAFE Framework 2012, p. 9 at para. 3.2.

  78. 78.

    SAFE Framework 2012, p. 33 at para. 7.

  79. 79.

    SAFE Framework 2012, p. 2 at para. 1.1.

  80. 80.

    SAFE Framework 2012, p. 33 at para. 7.

  81. 81.

    See, e.g., Abridged External Partner Version of the U.S.–EU Joint Customs Cooperation Committee Roadmap Towards Mutual Recognition of Trade Partnership Programs, January 2009, in Guidelines for developing a mutual recognition arrangement/agreement, 2011, Annex I, p. 9.

  82. 82.

    See WCO, Guidelines for developing a mutual recognition arrangement/agreement, 2011, p. 1. Available online at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/~/media/29AC477114AC4D1C91356F6F40758625.ashx.

  83. 83.

    The US-EU Joint Customs Cooperation Committee was created by Art. 22 of the Customs Mutual Assistance Agreement between the EU and US of 1997, O.J. No. L 222/17, 12 August 1997. Available online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1997:222:FULL:EN:PDF.

  84. 84.

    Decision of the US-EU Joint Customs Cooperation Committee of 4 May 2012 regarding mutual recognition of the Customs-Trade Partnership Against Terrorism program in the United States and the Authorised Economic Operators programme of the European Union O.J. L 144/44, 5 June 2012. Available online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2012:144:0044:0047:EN:PDF.

  85. 85.

    To date, the EU has concluded agreements with Switzerland and Norway, the United States, China, and Japan. An agreement with Canada will be concluded in the near future. The United States has entered into arrangements with New Zealand, Canada, Jordan, Japan, Korea, and the European Union. All of these agreements/arrangements have been based on the WCO’s SAFE Framework of Standards, which offers a nonbinding international standard for AEO programs and mutual recognition.

  86. 86.

    Such an agreement must contain provisions on the verification of equivalent security standards and the regulation of security incidents that justify suspension and/or revocation (Art. 14g (1) (a) CCIP).

  87. 87.

    Council Decision of 30 March 2004 concerning the conclusion of the Agreement between the European Community and the United States of America on intensifying and broadening the Agreement on customs cooperation and mutual assistance in customs matters to include cooperation on container security and related matters, O.J. L 304/32, 30 September 2004. Available online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004D0634:EN:NOT.

  88. 88.

    See Aigner, Mutual recognition of Authorised Economic Operators and security measures, World Customs Journal 4 (2010) 1, p. 51.

  89. 89.

    See SAFE Port Act 2006, H.R. 4251 (29 June 2012).

  90. 90.

    See WCO, Guidelines for developing a mutual recognition arrangement/agreement, 2011, p. 5 ff.

  91. 91.

    See CBP/TAXUD, US/EU Mutual Recognition Program, Frequently Asked Questions (FAQ), p. 8 at pt. 22.

  92. 92.

    In reflection of the complexity of this subject, the provisions of the MRA Guidelines on information exchange and communication between the parties are very broad.

  93. 93.

    In particular, paragraph (g) of the Decision grants customs authorities considerable discretion to include “additional details”.

  94. 94.

    Concerning the EU–Japan MRA, the EDPS was not consulted as required by Articles 28.2 and 41 of Regulation (EC) No. 45/2001. However, he was consulted in relation to the US–EU MRA. See Opinion of the European Data Protection Supervisor on the proposal for a Council Decision on a Union position within the EU–Japan Joint Customs Cooperation Committee concerning the mutual recognition of Authorised Economic Operator programmes in the European Union and in Japan, C190/2, 14 July 2010. Available online at http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2010/10-03-12_EU-Japan_EN.pdf.

  95. 95.

    See Opinion of the European Data Protection Supervisor on the Proposal for a Council decision on a Union position within the EU-US Joint Customs Cooperation Committee regarding mutual recognition of the Authorised Economic Operator Programme of the European Union and the Customs-Trade Partnership Against Terrorism Program of the United States Available online at http://www.edps.europa.eu/EDPSWEB/webdav/site/mySite/shared/Documents/Consultation/Opinions/2012/12-02-09_EU_US_Joint_Customs_EN.pdf.

  96. 96.

    Although one of the major advantages cited for the C-TPAT, for example, is expedited clearance for program participants. See CBP, Customs-Trade Partnership Against Terrorism: A Guide to Program Benefits. On the other hand, Article 1 of Section III of the Decision makes clear that all benefits are subject to policy considerations.

  97. 97.

    See, e.g, SAFE Framework, p. 2 at para. 1.1, which states that there “should be one set of international Customs standards developed by the WCO that do not duplicate or contradict other intergovernmental requirements”. Later, on p. 33 (para. 7), it refers to it as providing a “platform for… international systems of mutual recognition […]”.

  98. 98.

    See SAFE Framework 2012, p. 33 at para. 7.

  99. 99.

    It is striking that the SAFE Framework does not refer to the term “multilateral” once. Generally speaking, there are three major complaints of bilateral agreements: first, they are discriminatory insofar as they are selective and confer preferential conditions on the partner country; second, they are negotiated on an individual basis and tailored to the partner state, thereby leading to a proliferation of different standards; and, finally, they do not lead to global coverage because states only conclude bilateral agreements with their major trading partners. See Max Baucus, A New Trade Strategy: The Case for Bilateral Agreements, 22 Cornell Int’l L.J. 1, pp. 21 – 22.

  100. 100.

    First, the United States has made clear that it will not sign any mutual recognition arrangements that it does not regard as equivalent to its own. See CBP, Customs-Trade Partnership Agreement, Mutual Recognition FAQ. Moreover, on discovering that its ISF regulations did not comply with the standards laid down in the SAFE Framework, the US attempted to change the standards to comply with its security regime. See Blegen, US Importer Security Filing: Advance Electronic Data Under the SAFE Framework Meets the Real World, World Customs Journal 3 (2009) 1, 2009, p. 76. Available online at http://www.worldcustomsjournal.org/media/wcj/-2009/1/Blegen.pdf. As the SAFE Framework acknowledges, the measure of mutual recognition is not simply compliance with the minimum security standards of the WCO’s Framework of Standards but compatibility with the security regime in question. See also Aigner, Mutual Recognition of Authorised Economic Operators and Security Measures, World Customs Journal 4 (2010) 1, p. 49. Available online at http://www.worldcustomsjournal.org/media/wcj/-2010/1/Aigner.pdf.

  101. 101.

    For example, the EU has agreed to mutual recognition with the United States despite the fact that the US C-TPAT only covers import security. By contrast, the AEO program covers general compliance and exports.

  102. 102.

    The so-called Deep and Comprehensive Free Trade Agreements of the DG Trade also include chapters on nontrade issues. For example, the DCFTA with the Ukraine includes a chapter on customs. The EU–US Transatlantic Economic Council has acknowledged the importance of the Decision for trade, and soon after its signature, the High Level Working Group on Growth and Jobs recommended a comprehensive trade agreement between the EU and US to promote transatlantic growth and competitiveness. See Interim Report to Leaders from the Co-Chairs, EU – US High Level Working Group on Jobs and Growth, 19 June 2012. Available online at http://trade.ec.europa.eu/doclib/docs/2012/june/tradoc_149557.pdf. It also raises the question as to whether developed nations will attempt to create a plurilateral security regime along the same lines as the Anti-Counterfeiting Trade Agreement (ACTA) in relation to IP protection.

  103. 103.

    In this respect, the expansion of CSI halted at 58 seaports in 14 countries. See Container Security Initiative, In Summary, May 2011, p. 3. http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/csi/csi_brochure_2011.ctt/csi_brochure_2011.pdf.

  104. 104.

    Presentation by David Widdowson, University of Canberra World Customs Forum 2010-10-15 “Building Momentum for Effective Partnership: Globally Networked Customs and the Private Sector”, 6 – 7 October 2010, Renaissance Polat Hotel, Istanbul, Turkey.

  105. 105.

    CBP has expressly drawn attention to the influence of C-TPAT on other countries and the WCO: see pp. 27 – 28.

  106. 106.

    See, e.g., The White House, National Security Strategy for the United States of America, 2002, p. 1. Available online at http://www.whitehouse.gov/sites/default/files/rss_viewer/national_security_strategy.pdf. The National Security Strategy for Maritime Security, p. 20.

  107. 107.

    The Government Accountability Office and the Permanent Sub-Committee on Investigations took issue with virtually all aspects of the initiatives: criticisms included the poor quality of information offered by Importer Security Filing, the practical absence of security offered by the CSI owing to its limited coverage, CBP’s lack of enforcement powers at partner seaports, and poor relations with partner administrations. In addition, it took issue with the unreliable validation of C-TPAT participants. See United States Senate Permanent Sub-Committee on Investigations, Committee on Homeland Security and Governmental Affairs: An Assessment of US Efforts to Secure the Global Supply Chain, Prepared by the Majority and Minority Staff of the Permanent Subcommittee on Investigations, 2006. Available online at http://www.hsdl.org/?view&did=464168.

  108. 108.

    See Aigner, Mutual Recognition of Authorised Economic Operators and Security Measures, World Customs Journal, 4 (2010) 1, pp. 48–49. Available online at http://www.worldcustomsjournal.org/media/wcj/-2010/1/Aigner.pdf.

  109. 109.

    See WCO, AEO Implementation Guidance: How to develop an AEO programme, May 2010, p. 9.

  110. 110.

    In direct contravention of the WCO’s MRA Guidelines, the European Commission has so far refused to measure and report the tangible benefits of its AEO program: see Framework of Standards 2012, p. 28. A cursory consultation of the AEO database reveals a startlingly low number of economic operators holding AEO-S/F certificates. As the largest exporter in Europe, Germany has the most (2,500); the Netherlands boasts just under 1,000 AEOs; France has 568, whereas Italy and the UK each has less than 300.

  111. 111.

    See Furia, Rexrode et al, US Customs and Border Protection, Customs-Trade Partnership Against Terrorism, 2011 Costs & Savings Survey, Center for Survey Research, March 2011, Executive Summary. http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_news_reports/2011_cost_savings.ctt/2011_cost_savings.pdf.

  112. 112.

    The Bundesverband der Deutschen Industrie compared procedures for normal economic operators and those with AEO certification in 10 processes. It revealed that in 9 out of 10 processes, the procedures were largely identical (document on file with author). The trade association “Business Europe” reported in its Position Paper, Benefits for the Authorised Economic Operator, 6 September 2012, that “[A]t present, the requirements to achieve [AEO]… status completely outweigh the currently limited advantages that are granted subsequently”. Available online at http://www.businesseurope.eu/content/default.asp?PageID=568&DocID=30641. A wide-ranging examination of mutual recognition with regard to C-TPAT and the AEO issued by the Kommerskollegium (Sweden’s National Board of Trade) in 2010 did not perceive any meaningful benefit for AEOs either, suggesting that the need to cut costs was a major reason in its introduction. See Kommerskollegium (National Board of Trade, Sweden) 2010:3, Mutual recognition of AEO programmes: supply chain security and trade facilitation – progress report fall 2010. Available online at http://www.kommers.se/Documents/dokumentarkiv/publikationer/2010/skriftserien/report-2010-3-mutual-recognition-of-aeo-programmes.pdf.

  113. 113.

    See CLECAT comments on the Union Customs Code (MCC Recast) Proposal, Position Paper, European Association for Forwarding, Transport, Logistic and Customs Services, Brussels 30th May, 2012, p. 3 http://www.clecat.org/images/PP005OCITIuccProp.pdf.

  114. 114.

    See AEO Implementation Guidance: How to Develop an AEO Programme, May 2010, pp. 2 ff. Available online at http://www.wcoomd.org/en/topics/facilitation/instrument-and-tools/tools/~/media/4448CE5B00DB422FA89A29AA447A4F22.ashx. The fact that generating sufficient political will for mutual recognition, appropriate verification of legislation, controls and data exchange takes such a long time makes it unlikely that bilateral agreements will progress to global standards. See Aigner, Mutual Recognition of Authorised Economic Operators and Security Measures, World Customs Journal 4 (2010) 1, pp. 49–50. Available online at http://www.worldcustomsjournal.org/media/wcj/-2010/1/Aigner.pdf.

  115. 115.

    See CBP, Customs-Trade Partnership Against Terrorism, Mutual Recognition, Frequently Asked Questions, October 2012, p. 4. Available online at http://www.cbp.gov/linkhandler/cgov/trade/cargo_security/ctpat/ctpat_program_information/international_efforts/mutual_recog_faq.ctt/mutual_recog_faq.pdf.

  116. 116.

    See Aigner, Mutual Recognition of Authorised Economic Operators and Security Measures, World Customs Journal 4 (2010) 1, p. 51. Available online at http://www.worldcustomsjournal.org/media/wcj/-2010/1/Aigner.pdf.

  117. 117.

    In this connection, it would arguably be unrealistic to expect the SAFE Framework to provide harmonized standards for determining the level of risk or defining what a terrorist threat actually is. However, mutual recognition is dependent on such matters.

Author information

Authors and Affiliations

  1. Customs of Department and Excise, Department for Taxation, University of Münster, Jägerstrasse 17, Münster, 48153, Germany

    Christopher Dallimore

  2. Rechtswiss. Fakultät, Universität Münster, Universitätsstr. 14-16, 48143, Münster, Germany

    Hans-Michael Wolffgang

Authors
  1. Christopher Dallimore
    View author publications

    You can also search for this author in PubMed Google Scholar

  2. Hans-Michael Wolffgang
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Christopher Dallimore .

Editor information

Editors and Affiliations

  1. European Law, European and International Economic Law, University of Passau Chair for Constitutional and Administrat, Passau, Germany

    Christoph Herrmann

  2. Chair for Public Law and International Law, University of Erlangen-Nürnberg, Erlangen, Germany

    Markus Krajewski

  3. Chair for Public Law, European and International Law, Leuphana University Lüneburg, Lüneburg, Germany

    Jörg Philipp Terhechte

Rights and permissions

Reprints and permissions

Copyright information

© 2013 Springer-Verlag Berlin Heidelberg

About this chapter

Cite this chapter

Dallimore, C., Wolffgang, HM. (2013). The WCO’s Framework of Standards and the Internationalization of Supply Chain Security. In: Herrmann, C., Krajewski, M., Terhechte, J. (eds) European Yearbook of International Economic Law 2014. European Yearbook of International Economic Law, vol 5. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-40913-4_16

Download citation

Publish with us

Policies and ethics

Search

Navigation