Таможня и Наука

Sergey Moser

Aspirant of the Russian customs academy

The Bulletin of the Russian Customs Academy. – 2010. – № 3. – p. 7-8.

 

Annotation: The article contains the analysis of customs problematic in context of changing a regime of customs activity of Transdnistrian Moldavian Republic in the context of the USA – Taiwan experience. Some aspects of bilateral agreements of the USA and unrecognized Taiwan in customs sphere are researched; it is researched also the possibility of development of direct foreign trade relations and customs cooperation with unrecognized state.

Key words: Transnistria, Taiwan, regime, customs, customs activity, foreign-trade activity.

The issue of Transdniestrian conflict settlement has been drawing attention of Russian and Western experts for 20 years, who has been trying to find a proper key to its solving. It is no secret that Transdniestrian region is an area of strategic interests for Russian Federation, its important outpost in Balkan direction.

Recently the USA and EU has begun to show themselves actively and in a new way in the area of Transdniestrian conflict settlement, trying to remove Transdniestrian Moldavian Republic from the sphere of Russian influence and to reintegrate customs territory within the borders of the former Moldavian Soviet Socialistic Republic.

From our point of view, geopolitical contradictions were precisely one of the factors that caused a unilateral changing by the Republic of Moldova administrative-legal regime of the customs activity of Transdniesteria^[1] in September 2001г. In this context customs experts note that actions of the Moldavian colleagues run counter to previously achieved Moldavian-Transdniestrian agreements in customs sphere, concluded with participation of Russia, Ukraine and the OSCE, and granted the right to Transdniestria to carry out independently foreign trade transactions and clear goods and vehicles in customs bodies of Transdniestria.

As it is known, in 2001 Customs Department of the Republic of Moldova introduced new forms of customs documents and seals and withdrew from circulation all forms of customs documents and seals used till 1 September in compliance with the Decision of the Government of the Republic of Moldova of 30.08.2001 г. №904 “On organization of joint control at border crossing points across Moldavian-Transdniestrian border”. New regime regulations of the Republic of Moldova have taken effect along with the conclusion of the Protocol between the State Customs Service of Ukraine and Customs Department of the Republic of Moldova «On a mutual recognition of shipping, commercial and customs documents supply» of 15.05.2003. In accordance with Ukrainian-Moldavian Protocol, clearance of goods for home use in the customs territory of Ukraine having a common border with Transdniestria can be carried out only if there is the fact of customs clearance of Transdniestrian goods in customs bodies of the Republic of Moldova.

Thus, the precedent of changing of administrative-legal regime of the customs activity of Transdniestria has been artificially created.

Transdniestrian Moldavian Republic qualifies regime regulations of Transdniestrian export as an economic form of pressure and economic blockade of the region.

In our opinion, the role of the United States in this issue is ambiguous. The USA do not conceal that Moldavian-Transdniestrian agreement of 15.05.2003 was concluded thanks to participation and assistance of American experts.^[2] In this context, for purposes of comparative jurisprudence the precedent of unrecognized Taiwan attracts interest, with which the American state has established solid trade relations, and carries out bilateral and mutually beneficial cooperation in customs area.

For a start let’s note that despite of diplomatic restraints, Taiwan has managed to establish with international community wide contacts in economic and cultural areas. In unrecognized Taiwan Trade and Cultural Missions of Great Britain, Belgium, Czech Republic, Slovakia, Denmark, Finland, Hungary, Italy, Netherlands, Sweden, Poland successfully work. This group also comprises French Institute in Taipei, German Institute, Institute for Trade and Investment of Ireland. Functions of the missions of European business in Taiwan are effectively fulfilled by Chambers of Commerce and Industry of Germany, France, Spain, Great Britain.

Since 1988 in Taipei the European Chamber of Commerce and Industry is opened, representatives of which continually hold official contacts with high officials of Taiwan leadership as well as with various institutes of European Union.

For purposes of comparative analysis let’s note that in the 80s in Taiwan and the USA unofficial representative offices were opened: American institute in Taiwan and Coordinating Council for North America Affairs. The personnel were granted with diplomatic immunity and all privileges that have the members of diplomatic missions. Notwithstanding the formal private status, missions were financed from the state budget, and their staff was formed by heads of the USA diplomatic offices.

The policy pursued by the USA and EU eliminates every forms of pressure on unrecognized Taiwan, follows peaceful settlement of conflict between the continental China and Taiwan. In case of boycotts and embargo against Taiwan region the USA are ready to answer with serious measures. Economic forms of pressure according to the USA and EU are unacceptable in relation to Taiwan.

In the context of the research let’s consider some American-Taiwan agreements in customs area. In our opinion such agreements from a legal point of view are rather private-law than of international character. Nevertheless the found form of cooperation, as we consider, is a dependable instrument for legal consolidation of administrative-legal regime of customs activity of the unrecognized state-territorial formation of Taiwan.

Thus, on 17.01.2001 in Washington was concluded bilateral agreement “On mutual assistance between designated representatives of Taiwan Customs Administration and the USA Customs Administration”, which regulates legal relations between Customs Services of the USA and Taiwan. The agreement recognizes cooperation of the sides (Customs Department of Taiwan, Ministry of Finance, the USA Customs Service, and Treasury) in the framework of legislation of the contracting parties.

The term “customs laws” means the laws and regulations enforced by the Customs Administrations concerning importation, exportation, and transit or circulation of goods as they relate to customs duties, charge s and other taxes or to prohibitions, restrictions, and other similar controls respecting the movement of controlled items across the boundaries of their separate customs territories.^[3] American-Taiwan agreement consists of 14 Articles, containing norms, typical for treaties concluded between customs services of the states, possessing international legal personality.

The document specifies general and special scope of cooperation of the sides, regulates the issues of transmitting files, documents between Customs Administrations of the USA and Taiwan, procedure for communication and execution of requests, ensures confidentiality of transmitted information, regulates the issues concerning reimbursement of costs and procedure for implementation of the agreement, enables Customs Administrations of the USA and unrecognized Taiwan to cooperate directly in revealing, investigating and combatting customs offences.

Currently the USA and unrecognized Taiwan (without participation of China and its Customs Administration) officially provide each other operational information relating to transportation and shipment of goods showing value, destination and disposition of those goods. Upon request of Taiwan customs bodies American Customs Administration transmits copies of the requested documents and where necessary – originals of customs, commercial documents and other materials requested for customs purposes by Taiwan.

For understanding the controversy let’s remind that Moldavian-Ukrainian Protocol of 15.05.2003 preventing Transdniestrian export through the Transnistrian sector of Ukrainian-Moldavian state border (without customs seals issued by Moldova and without the fact of customs clearance of Transdniestrian cargoes in Moldavian Customs Service) was concluded with the help of the USA to Moldova and Ukraine.

Thereby, in one case the USA admit development of direct bilateral foreign trade and customs relations with unrecognized state formation (Taiwan) trying to find some legal form for these purposes, and in other case qualify direct exportation of unrecognized Transdniestria with near and far foreign countries (cleared in Transdniestrian Customs Service in compliance with Moldavian-Transdniestrian agreements) to be contraband and illegal.

In our opinion at issue is the policy of double standards, that confirmed by political character of changing of administrative-legal regime of customs activity of Transdniestrian Moldavian Republic.

Let’s add that protectionist policy of the USA in relation to unrecognized Taiwan and status of major trading partner of the most European countries enabled politic and economic partners of Taiwan region to create mechanism allowed taking no notice of the fact that unrecognized region had no international-legal status.

The absence of the official contacts between the United States and unrecognized Taiwan did not prevent the conclusion of number of bilateral American-Taiwan agreements in the fields of aviation, including air transportation of goods.

So, on 05.03.1980 Coordinating Council for North America Affairs and American Institute in Taiwan concluded Air Transport Agreement with the view to establish wide friendly trade and cultural relations, to render freight services for legal and natural persons. Within the limits of the agreement the sides follows the norms of the UNO Convention “On International Civil Aviation” of 07.12.1944.

The USA and Taiwan for purposes of air transportation management accept as valid certificates of airworthiness, competency certificates, licenses issued by competent authorities of the sides and equal to the minimum standards established by the Chicago Convention. Thus, in order to arrange delivery of commercial cargoes between the USA and Taiwan by air transport certificates and licenses issues by internationally recognized the People’s Republic of China, are not required.

The more interesting document containing regime regulations for importation of goods to the territory of Taiwan is the American-Taiwan Agreement concerning beer, wine and cigarettes of 12.12.1986. On the one hand the agreements are not formally international, concluded between so-called private agencies, but unless fulfilling mutually agreed regional requirements contained in them none of the economic operators of the USA could convey goods to the Taiwan market.^[4] Let’s consider the regime rules, agreed by American and Taiwan sides with the view to regulate American goods supplies to the Taiwan market.

Importation procedures of American goods into the unrecognized Taiwan come to the following: Taiwan Tobacco and Wine Monopoly Bureau (TTWMB) shall, within three working days, stamp or sign the import permit application properly completed by the commercial importer for each shipment of merchandise, without any restriction on price, quantity, brand or style:

a valid certificate of registration of profit-seeking enterprise, issued by the appropriate CCNAA authority to the commercial importer;

a pro forma invoice setting out the brand (and style, if applic­able) of the merchandise to be imported in that shipment, quantity of each brand (and each style, if applicable), and price quotation of each brand (and each style, if applicable);

most recent certificate(s) issued by appropriate CCNAA tax authorities, demonstrating that such commercial importer has paid all taxes owed in Taiwan; and

a valid certificate of origin issued by the appropriate state or federal government or semi-government bodies or appropriate chamber of commerce of the United States certifying that all merchandise in that shipment is produced in the, United States.^[5]

The representatives of the USA and Taiwan have agreed that as a condition for formal customs entry into Taiwan of the merchandise, the commercial importer shall provide to the customs officials (of Taiwan – author’s note) one copy of a receipt issued by TTWMB confirming that the monopoly tax has been paid in full. Such receipt shall be issued upon payment of the tax.

The sides came to an agreement that all packing, shipping, insurance, inland transportation, warehousing arrangements, and customs clearance relating to any merchandise imported to Taiwan (American wine, beer, cigarettes – author’s note) shall be the sole responsibility of the commercial importer.

In our opinion, the American-Taiwan agreement is of special interest for the research as it recognizes actions (procedures) of customs service and other bodies of state power of the unrecognized state to be legal: the USA and Taiwan have established that import of American merchandise shall be cleared through customs expeditiously in accordance with the law and standard procedures and rules (of Taiwan – author’s note). Taiwan Tobacco and Wine Monopoly Bureau shall complete any inspection within the ten-day period provided for customs inspection under Taiwan law to ensure compliance with the pro forma invoice already submitted to the TTWMB; the certificate of origin already submitted to the TTWMB; the standards or requirements described, in section VII of the Agreement.
On the basis of the above said, the absence of the official contacts between the United States and unrecognized Taiwan did not prevent the USA from recognizing customs bodies of the Taiwan and considering procedures and actions of the Taiwan customs officials to be legal, recognizing customs legislation of the Taiwan region, accepting procedure of customs inspection in relation to American goods and finally recognizing documents for customs purposes of the unrecognized state.

The performed analysis makes it possible to conclude that the unrecognized status of the state-territorial formation does not hamper the establishment and development of its foreign trade relations with international trade community.

In addition, the conducted research of bilateral relations of Taiwan and EU proves the possibility of cooperation with Taiwan region in the line of bank cooperation, cooperation in the area of mutual investments, participation in international finance and investment projects, cooperation in customs and tax areas, cooperation on the issues of technical control arrangement, validation of procedures, carried out by customs bodies of unrecognized subjects of international law and documents for customs purposes.^[6]

From our point of view the practice described above concerning creation of the agreed regime rules and necessary mechanisms of customs control as well as ensuring of autonomous right of separate administrative-territorial units to carry out independently foreign trade contacts can be considered in settling of Transdniestrian issue.

Within the limits of the conducted research one can say with confidence that enhancement of regulation of administrative-legal regime of the customs activity of Transdniestria can be regarded in the context of American-Taiwan experience with observance of international commercial and customs law, presuming the principle of freedom of trade. But, as we consider, in settling of Transdniestrian issue and searching for possible models of settlement of Transdniestrian problematics, EU and the USA will follow other principles and approaches, applying double standards to pro-Russian Transdniestrian region, this is determined first of all by geopolitical interests of the abovementioned subjects.

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