Introduction
When using the term "integration" in international trade, its use is obviously situated within the economic sphere; that is, in policies aimed at eliminating barriers that impede or restrict the unification of economies between countries. But what about the legal framework of each country in relation to specific customs regimes? Of course, there are international treaties and conventions on this matter; the point is not to ignore them, but rather to consider situations or issues where it is also important to seek harmonization of rules and criteria, especially among countries that share the same region and, potentially, those that are already part of a trade bloc and their associates, those that may be integrating if they are not yet integrated. Therefore, the aim here is to provide a brief analysis of the importance of comparative law in this regard for improving the study, the drafting of regulations, and the establishment of principles for the concrete resolution of events with legal implications for customs.
Development
Part
Let us begin by considering that, in this field, comparative law consists of the comparative study of the legal systems of different nations, in relation to similar institutions in other states. Therefore, in our case, the aim is to determine customs regulations and the importance of achieving the greatest possible harmonization within the region occupied by Argentina, as well as identifying similarities in these regulations to facilitate smoother interaction between states. In this way, customs control over imports and exports (the function and power that constitutes the essence of Customs) could be achieved with a degree of uniformity, as this benefits trade and the fluidity of international commerce, a tool of fundamental importance for economic development. This is because, while customs control must exist, it cannot be implemented or exercised in a way that hinders trade.
Of course, always preserving the greatest control over activities that may put public health, safety and the environment, among others, at risk.
As previously mentioned, there are various international conventions in the field of international trade that regulate different matters relating to the international traffic of goods; it suffices to point out, by way of example, the Customs Convention on the ATA Carnet for the Temporary Importation of Goods, done at Brussels on 6 December 1961, the Customs Convention on Containers, done at Geneva on 2 December 1972, the International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto Convention), done at Kyoto on 18 May 1973, the Convention on the Harmonised System of Designation and Coding of Goods, done at Brussels on 14 June 1983, the UN Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, signed at Basel on 22 March 1989; etc.
Undoubtedly, the General Agreement on Tariffs and Trade (GATT) has been a crucial agreement for international trade. Following the 1994 Marrakesh Agreement, it has now become part of the World Trade Organization (WCO). This has led to a significant unification of regulations governing international trade and, consequently, customs legislation.
We must place greater emphasis on the need for unified criteria and regulations among countries participating in an integration process. This includes nations that, while not formally part of the process, are geographically close and maintain close ties with other members of a trade bloc. In this context, it is important to note that in integration, state sovereignty yields to a specific, agreed-upon legal framework that applies to their citizens, especially those involved in international trade, and, of course, to regulatory bodies.
Within the Mercosur framework, the 1991 Treaty of Asunción governs. However, the lack of unified customs regulations to achieve full integration persists, since although the Mercosur Customs Code was drafted in 2010, this legal framework has not entered into force because it has not been approved by all member states.
Second
Returning to the point about the importance of comparative law, it's worth noting that its study aims not only at applying universal norms but also at establishing uniform criteria for applying rules that regulate a specific activity. It is through this approach that we can clarify the norms, doctrine, and jurisprudence applicable to the regulatory framework and the resolution of legal situations related to imports and exports. It is in this study that we recognize the differences and similarities that can serve to harmonize norms and provide discernment for the regulation and resolution of conflicts.
It is undoubtedly through comparative law that the creation of rules, their interpretation, jurisprudence, and institutions, among other things, can be improved, enriching the political, social, and economic exchange between nations, which of course has repercussions on international trade. For example, WTO members have access to information on how other member states apply the rules they create. The same applies to regulatory bodies, such as customs, which can exchange information and jointly seek the best ways to cooperate in resolving situations, using standardized coordination criteria.
In this regard, the WTO compares different harmonized standards with those of other private organizations; in this way, it assesses whether it can choose the one that is most suitable for its implementation by developing its own standard. 1
Conclusion
This note aims to highlight the importance of comparative law in contributing to the unification of rules and criteria in the application of customs law in Latin America. This consideration should not be limited to the full member countries of Mercosur and their associates, but should also seek to extend harmonization to other countries in the regulation and application of customs rules and jurisprudence, to facilitate the development of international trade in conjunction with customs control activities. The jurisprudence of the various administrative bodies responsible for resolving disputes plays a fundamental role in this process, serving as a crucial guiding principle; and, of course, so do the relevant judicial authorities. And as we mentioned together with Dr. Guillermo Felipe Coronel in the work on the Annotated Customs Code, “International trade relies on actions involving parties from different nations, and this leads States to recognize the need to harmonize operational, tax, and customs mechanisms, enabling a predictable framework to facilitate secure commercial interaction. We dare say that International Trade revolves around the World Trade Organization (WTO), which is the core from which flow the rules that will guide trade between countries and that respond to the guidelines and agreements agreed upon by its members, whose objective is to protect and support the activities of producers of goods and services, exporters, and importers.”²
Because especially in today's world, studying and understanding Customs Law also involves subjecting its analysis to comparative law to ensure that its regulation and application are useful and not an impediment to the greater and better development of international trade.
- Stewart, RB, & Ratton Sanchez Badin, M. (2016). The World Trade Organization: The multiple dimensions of global administrative law. In B. Kingsbury & RB Stewart (Eds.), Towards global administrative law: Foundations, principles and scope of application (collective volume). Global LawPress – Global Law Publishing House.
- Coronel, GF, & Sueldo, GJ (2023). Annotated Customs Code (Volume IV: Taxes and incentives, p. 99). Servicop Publishing House.
The author is a lawyer and member of the Institute of Customs Law and International Trade of the Argentine Association of Constitutional Justice.
