The Jackson-Vanik Amendment and Candidate Countries for WTO Accession: Issues for Congress

The Jackson-Vanik Amendment and

Candidate Countries for WTO Accession:

Issues for Congress

/name redacted/

Specialist in International Trade and Finance

January 4, 2013

Congressional Research Service

7-....

www.crs.gov

RS22398

CRS Report for Congress

Prepared for Members and Committees of Congress

The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

Summary

Unconditional most-favored-nation (MFN) status, or in U.S. statutory parlance, normal trade

relations (NTR) status, is a fundamental principle of the World Trade Organization (WTO). Under

this principle, WTO members are required unconditionally to treat imports of goods and services

from any WTO member no less favorably than they treat the imports of like goods and services

from any other WTO member country. Under Title IV of the Trade Act of 1974, as amended, most

communist or nonmarket-economy countries were denied MFN status unless they fulfilled

freedom-of-emigration conditions as contained in Section 402, the so-called Jackson-Vanik

amendment, or were granted a presidential waiver of the conditions, subject to congressional

disapproval. The statute still applies to some of these countries, even though most have replaced

their communist governments. The majority of these countries have joined the WTO or are

candidates for accession. Several countries are close to completing the accession process, and

Congress could soon face the issue of what to do about their NTR status to ensure that the United

States benefits from those accession agreements.

During the 112th Congress, Members faced the issue of whether to extend permanent normal trade

relations (PNTR) status to Russia and Moldova. On November 16, 2012, the House passed (36543), and on December 6, 2012, the Senate passed (92-4) H.R. 6156, which did just that, among

other things. The legislation also included provisions—the Magnitsky Rule of Law

Accountability Act of 2012—that impose sanctions on individuals linked to the incarceration and

death of Russian lawyer Sergei Magnitsky. President Obama signed the legislation into law (P.L.

112-208) on December 14, 2012.

The 113th Congress may face the issue of extending PNTR to at least two other countries. On

December 10, 2012, WTO members invited Tajikistan to join, subject to that country’s ratification

of its accession package. In addition, Kazakhstan may accede to the WTO in 2013. Both countries

are currently subject to Title IV of the Trade Act of 1974.

Congressional Research Service

The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

Contents

MFN/NTR and the GATT/WTO...................................................................................................... 1

Jackson-Vanik Amendment and Communist and Former Communist Country

GATT/WTO Members .................................................................................................................. 2

The Case of China ........................................................................................................................... 3

Prospective WTO Accessions .......................................................................................................... 3

Contacts

Author Contact Information............................................................................................................. 5

Congressional Research Service

The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

D

uring the 112th Congress, Members faced the issue of whether to extend permanent

normal trade relations (PNTR) status to Russia and Moldova. On November 16, 2012,

the House passed (365-43), and on December 6, 2012, the Senate passed (92-4) H.R.

6156, which did just that, among other things. President Obama signed the legislation into law

(P.L. 112-208) on December 14, 2012. The 113th Congress may face the issue of authorizing

PNTR for at least two other countries—Tajikistan and Kazakhstan.

MFN/NTR and the GATT/WTO

Most-favored-nation (MFN) treatment is a fundamental principle of the General Agreement on

Tariffs and Trade (GATT 1994), which governs trade in goods; of the General Agreement on

Trade in Services (GATS); and of the agreement on Trade-Related Aspects of Intellectual

Property Rights (TRIPs). In essence, the principle requires that each WTO member treat the

product of another member no less favorably than it treats a like product from any other member.

If a member country lowers a tariff or nontariff barrier in its trade with another member that

“concession” must apply to its trade with all other member countries.1

The United States grants all but a few countries, namely Cuba and North Korea, normal trade

relations (NTR), or MFN, status.2 In practice, duties on the imports from a country that has not

been granted NTR status are set at much higher levels—rates that are several times higher than

those from countries that receive such treatment. Thus, imports from a non-NTR country can be

at a significant price disadvantage compared with imports from NTR-status countries.

The WTO agreements also require that MFN treatment be applied “unconditionally.” However,

when a WTO member determines that it cannot, for political or other reasons, accede to this or

any other GATT/WTO principle toward a newly acceding member, it can “opt-out” of its

obligations toward that member by invoking the non-application provision (Article XIII of the

WTO or Article XXXV of the GATT). In so doing, the WTO member is declaring that the WTO

obligations and mechanisms (e.g., the dispute settlement mechanism) are not applicable in its

trade with the new member in question.

Invoking the non-application clause is a double-edged sword. Although it relieves the member

invoking the provision of applying MFN or any other obligations toward the new member, it also

denies the benefits and protections that the WTO would provide to the former in its trade with the

latter.

1

Some exceptions are permitted. For example, the GATT 1994 and the GATS allow members to form free-trade areas

and customs unions that extend preferential treatment to trade among the members of the free-trade area and customs

union but not to countries outside the arrangement. They also permit developed countries to extend unilateral

preferential treatment to developing countries under generalized system of preference (GSP) or similar programs.

These exceptions are allowed under specified conditions. A member country may also seek a special waiver in its

application of MFN to another member, subject to the approval of at least three-fourths of the WTO membership. The

GATS and TRIPs also provide for some MFN exceptions.

2

The terms normal trade relations (NTR) status and most-favored-nation (MFN) status are used interchangeably. MFN

was replaced by NTR in U.S. law in 1998 to dispel the notion that MFN conveyed a preferential benefit. However, the

term MFN is still widely used in the WTO and international trade agreements.

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The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

Jackson-Vanik Amendment and Communist and

Former Communist Country GATT/WTO Members

In 1951, the United States suspended MFN status to all communist countries (except Yugoslavia)

under Section 5 of the Trade Agreements Extension Act. That provision was superseded by Title

IV of the Trade Act of 1974.

Section 401 of Title IV requires the President to continue to deny nondiscriminatory status to any

country that was not receiving such treatment at the time of the law’s enactment on January 3,

1975. In effect, this meant all communist countries, except Poland and Yugoslavia. Section 402 of

Title IV, the so-called Jackson-Vanik amendment, denies the countries eligibility for NTR status

as long as the country denies its citizens the right of freedom of emigration. These restrictions can

be removed if the President determines that the country is in full compliance with the freedom-ofemigration conditions set out under the Jackson-Vanik amendment. The Jackson-Vanik

amendment also permits the President to waive full compliance with the freedom-of-emigration

requirements if he determines that such a waiver would promote the objectives of the amendment,

that is, encourage freedom of emigration.3 While Title IV addresses only freedom of emigration,

Congress has used the law to press the subject countries on a number of economic and political

issues. Removal of a country from Jackson-Vanik restrictions requires Congress to pass

legislation.

Czechoslovakia was an original signatory to the GATT in 1947. In 1951, the United States

suspended MFN treatment because it had become communist. Because Czechoslovakia was an

original signatory to the GATT and not a newly acceding member, the non-application provision

did not apply. Instead, the United States sought and obtained from the other GATT signatories

approval for the suspension of MFN treatment.4

The United States invoked the non-application provision when Romania and Hungary became

GATT signatories in 1971 and 1973, respectively. These restrictions no longer applied after the

United States, through legislation, extended unconditional MFN, or permanent normal trade

relations (PNTR), status to Czechoslovakia (later the Czech Republic and Slovakia), Hungary,

and Romania after the fall of the communist governments in those countries.

The United States granted PNTR to Albania, Bulgaria, and Cambodia before these countries

acceded to the WTO, making it unnecessary to invoke the non-application provision. This was

also the case for the former Soviet republics of Estonia, Latvia, and Lithuania.

Mongolia joined the WTO on January 29, 1997, more than two years before the United States

granted it PNTR. During that time, the United States invoked the non-application provision. It

3

For more information on the Jackson-Vanik amendment, see CRS Report 98-545, The Jackson-Vanik Amendment: A

Survey, by (name redacted). (Out of print; available on request from the author.)

4

Pregelj, Vladimir N. Normalization of U.S. Commercial Relations with East Europe. In U.S. Joint Economic

Committee. East European Economic Assessment. A Compendium of Papers. July 10, 1981, p. 671. Cuba was also an

original signatory to the GATT. When the United States suspended MFN as part of a total trade embargo on Cuba in

1962, it did not seek such approval, but Cuba has never challenged the suspension of MFN. Pregelj, Vladimir N. CRS

Report 75-192. United States-Cuban Trade Relations: Their Present Legal Status and Action Required For Their

Normalization. August 27, 1975. (Out of print; available on request from the author.)

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The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

also invoked the provision with Armenia when it joined the WTO on February 5, 2003, and

received PNTR on January 7, 2005, and with Kyrgyzstan when it joined the WTO on December

20, 1998, before receiving PNTR on June 29, 2000. Each bill authorizing PNTR for Mongolia,

Armenia, Kyrgyzstan, and Georgia contained a “finding” that extending PNTR would enable the

United States to avail itself of all rights within the WTO regarding that country. The United States

invoked Article XIII also in its trade relations with Vietnam on November 7, 2006, before PNTR

for Vietnam went into effect, but had granted Ukraine PNTR status in 2006 prior to that country’s

accession to the WTO. It invoked non-application regarding Moldova and Russia prior to thsoe

countries receiving PNTR status.

The Case of China

As with the other communist countries, China was subject to the provisions of the Jackson-Vanik

amendment. The United States denied China MFN status until October 1979, when it was granted

conditional MFN under the statute’s presidential waiver authority. China acceded to the WTO on

December 11, 2001. Congress passed legislation (P.L. 106-286) removing the Jackson-Vanik

requirement from U.S. trade with China and authorizing the President to grant PNTR to China,

which he did on January 1, 2002. However, in the legislation, Congress linked the granting of

PNTR to U.S. acceptance of conditions for accession to the WTO. It states that prior to making a

determination on granting PNTR, “the President shall transmit to Congress a report certifying that

the terms and conditions for the accession” of China to the WTO “are at least equivalent to those

agreed to” in the bilateral agreement the United States and China reached as part of the accession

process.5

China’s bilateral agreement with the United States, which is contained in the final accession

agreement, contains provisions for special safeguard procedures (codified in U.S. law as Sections

421-423 of the Trade Act of 1974) to be used when imports cause or threaten to cause market

disruption in the United States. It also provides for a separate safeguard procedure in the case of

surges in imports of textiles and wearing apparel from China, as well as special antidumping and

countervailing duty procedures. All of these provisions have time limits. The legislation

authorizing PNTR for China also provided for the establishment of a congressional-executive

commission to monitor human rights protection in China to replace Congress’s focus on this issue

that occurred during the annual NTR renewal debate.6

Prospective WTO Accessions

Countries that are still subject to the restrictions have also applied for membership to the WTO

and are at various stages of the accession process: Azerbaijan, Belarus, Kazakhstan, Tajikistan,

and Uzbekistan. Congress usually has no legislative role in the accession of countries to the

WTO. However, the legislative requirement for repeal of Title IV provides a role, albeit

5

As part of the WTO accession process, candidate countries must complete bilateral negotiations with any WTO

member that wishes to do so. The agreement obligates the acceding country to change laws or practices to meet the

needs of the specific WTO member. All of the bilateral agreements plus the agreement with a WTO Working Party are

combined into a protocol of accession laying down the conditions for the country to enter the WTO.

6

For more information, see CRS Report RL33536, China-U.S. Trade Issues, by (name redacted).

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The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

indirectly, in the cases of the above-mentioned affected countries by giving Congress leverage on

the negotiation of conditions for WTO accession.

Congress has several options. It could repeal the restrictions before the country(ies) actually

enter(s) the WTO, completely separating the issues of Title IV repeal and WTO accession. This is

the course that Congress has followed in most cases to date and would allow the United States to

fulfill the unconditional MFN requirement prior to the country acceding to the WTO. Many of the

countries in question, view the Jackson-Vanik requirements and the rest of the Title IV

restrictions as Cold War relics that have no applicability to their current emigration policies and,

more generally, to the types of governments they now have. They assert that their countries

should be treated as normal trade partners and, therefore, that the restrictions should be removed

unconditionally.

A second option would be for Congress to link the granting of PNTR with the country’s accession

to the WTO. For example, Congress could follow the model established with PNTR for China by

requiring the President to certify that the conditions under which the country is entering the WTO

are at least equivalent to the conditions that the United States agreed to under its bilateral

accession agreement with the country. It can be argued that in this way, Congress helped define,

at least indirectly, the conditions under which China entered the WTO. However, the candidate

countries would probably bridle at such treatment, asserting that they would be asked to

overcome hurdles that are not applied to most of the other acceding countries, especially

countries not subject to Jackson-Vanik.

During the debate on PNTR for Russia, some Members of Congress raised concerns about

Russia’s fulfillment of commitments in certain areas and wanted some assurances. H.R. 6156,

which authorized PNTR for Russia, contained provisions that required

•

the USTR report annually to the Senate Finance Committee and the House Ways

and Means Committee on Russia’s implementation of its WTO commitments,

including sanitary and phytosanitary (SPS) standards and IPR protection and on

acceding to the WTO plurilateral agreements on government procurement and

information technology;

•

the USTR report to the two committees within 180 days and annually thereafter

on USTR actions to enforce Russia’s compliance with its WTO commitments;

•

the USTR and the Secretary of State report annually on measures that they have

taken and results they have achieved to promote the rule of law in Russia and to

support U.S. trade and investment by strengthening investor protections in

Russia;

•

the Secretary of Commerce to take specific measures against bribery and

corruption in Russia, including establishing a hotline and website for U.S.

investors to report instances of bribery and corruption; a description of Russian

government policies, practices, and laws that adversely affect U.S. digital trade

be included in the USTR’s annual trade barriers report (required under section

181 of the Trade Act of 1974); and

•

the negotiation of a bilateral agreement with Russia on equivalency of SPS

measures.

A third option would be for Congress to not repeal Title IV at all. This option would send a strong

message to the partner country of congressional concerns or discontent with its policies or

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The Jackson-Vanik Amendment and Candidate Countries for WTO Accession

practices without preventing the country’s entrance into the WTO. At the same time, the United

States would have to invoke the non-applicability provision (Article XIII) in its trade relations

with that country. The United States would not benefit from the concessions that the partner

country made in order to accede to the WTO. The United States would not be bound by WTO

rules in its trade relations with the country, nor would that country be so bound in its trade with

the United States. For example, the WTO dispute settlement body mechanism would not be

available to the two countries in their bilateral trade relationship.

In determining which option to exercise, Congress faces the balance of costs and benefits of each.

In addition, how Congress treats each of the countries relative to the others could have

implications for U.S. relations with them.

The 113th Congress may face the issue of extending PNTR to at least two r countries. On

December 10, 2012, WTO members invited Tajikistan to join, subject to that country’s ratification

of its accession package. In addition, Kazakhstan may accede to the WTO in 2013. Both countries

are currently subject to Title IV of the Trade Act of 1974.

Author Contact Information

(name redacted)

Specialist in International Trade and Finance

/redacted/@crs.loc.gov, 7-....

Congressional Research Service

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