Keren Levi-Hafetz, Adv, Gil Nadel, Adv.
Important Instructions for Importers and Exporters
Many subjects relating to international trade are organized in the framework of international agreements and conventions, signed by many countries in the world. Israel is also a signatory of international agreements, like the WTO Agreement and the free-trade area agreements (with the US, EU, and others) in which the state of Israel committed to reduce duties and grant additional benefits in international trade, up to cancellation of duties.
Knowing the different provisions of these agreements can be a very valuable tool for the importer/exporter who has run into difficulties with the government authorities while interested in importing/exporting, since these agreements include various obligations of the state of Israel whose goal is to make international trade more efficient, and some of which may be very relevant to the issues of an importer/exporter.
For example: Paragraph 9 of the Protocol of Rules of Origin in the agreement with the US establishes that the authorities may exempt from the obligation to present certificates of origin when the nature of the goods meets the rules of origin, which can help importers who did not present certificates of origin by the date established in the tariff duties writ. Another example: Importers who pay various fees during import can appeal the legality of these fees via the provisions of the WTO agreement which forbids placing duties in the guise of various fees that do not provide a direct and clear service to the importer (e.g- a platform tax which is calculated as a certain percentage of the value of the goods without correlation to the cost of the service). And we haven't even gotten to the conventions that deal with duties protocol, import of sample, and others.
Two separate systems
But when the importer is interested in relying of the trade agreements in the framework of litigation with the government authorities, he is liable to be faced with the claim that the international agreements which Israel has signed and the internal law of the state of Israel constitute two separate systems and only via a law adopting the provisions of the international agreement will these provisions have direct incidence in the Israeli law. As long as the international agreement is not adopted in a law- the individual (the importer/exporter) cannot rely on them in legal litigation. The courts in Israel accept this stance.
Recently, more and more criticism has been heard from member of academia against the “dualism approach”, that claims that it is an outdated approach that no longer fits the modern era in which international trade is prospering and flourishing and the situation in which international agreements deal primarily with issues relevant to the individual and less with the relations between states. However, as has been said, the dualism approach still reigns in the decisions.
Solutions which enable bringing agreements into Israeli law
And yet, there are a number of solutions that succeed, to some degree, in incorporating the foreign agreements into the Israeli law even without a law establishing such explicitly.
The first mechanism that enables giving the provisions of the agreements binding force is recognizing the provisions of the agreements as administrative instructions that obligate the government. Administrative instructions are rules which the administrative authority issues to direct its employees how to act in various situations, and they bind the authority. Since the state of Israel validates the international agreements in that it signed them, it can be argued that the provisions of the agreements are administrative instructions that obligate the government authorities (including, for example, the Customs Authority, the departments that oversee import and export, etc.) and if these authorities act in contradiction to the provisions of the agreements, they are not acting properly from an administrative prospective. See, for example, on this issue, the article of Prof. Yaffa Zilbershatz, International Law in Constitutional law, Law and Government D 1997, p. 64.
And now for the second mechanism. When the case involves an agreement whose provisions may not have become an official part of the Israeli law, but practically are widely implemented by the authorities, it can be argued that the international provisions became a customary convention, which has, unlike an ordinary international agreement, binding force in Israeli law, and the authorities must act according to it, even if it was not incorporated via an Israeli law. (See בג"צ 2587/04 Bucharis v. Assessement Official of Hadera)
Another possibility is to attempt to interpret the provisions of the law in a different way than the authorities interpreted them, which will match the international agreements better. The approach of the courts is that a presumptions exists that the goal of the law is to enact the provisions of the international agreements and not to oppose them (see for example בג"צ 6317/95 Pedesko v. Minister of Defense). As long as there is an interpretation that fits with the provisions of the international agreement- the court will prefer it.
The Supreme Court Decision on Drezner
Another, more important, direction was expressed recently in the Supreme Court decision on רע"א 8934/03 Drezner v. Gil, in which the court ruled that a distinction should be made between a case in which the state of Israel must act in light of its obligations under the agreements- in which there is a need for an internal law obligating it to do so, versus a case in which the state is required to refrain from a certain action, in which the court may instruct it to refrain from doing so in light of the provisions of the international agreement.
It is still unclear how far the court's decision is limited to the specific circumstances of that case or whether it shows a trend towards the erosion of the “dualism approach”. Presumably the court will discuss the question later.
If we want to summarize the matter, we will say that use of the provisions of international agreements which Israel has signed, without the provision having been incorporated into Israeli law, is not simple, and as of now requires relying of various external mechanisms. At the same time, it is advisable not to forgo this tool and to make use of it, in the hopes that the more that it is used, the more the court will be inclined to forgo the outdated dualism approach and allow the citizen to rely directly on the provisions of the agreements to oblige the authorities to act according to these provisions.
עדכוני מכס ורגולציה
