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The drafting history of Article IV is clear. It was offered to and accepted by the Pakistanis with the word "foreign" in place of "other" and it was only at a very late stage after the negotiations had been finished and after a final text had been sent to Karachi - that we, for legal drafting reasons to which Simpson at the time attached importance - substituted "other" As is often the case, the available files do not so clearly disclose what it was that was in the minds of those concerned at the time when they offered "foreign" and had it accepted. The only sense we can now make of it is that it was intended to complement other commitments by providing that we would not charge on Pakistani goods rates higher than our mfn rates. In offering "foreign", we could not have had in mind a situation in which we were according duty free entry to foreign countries with which we were in a free trade area relationship since if at that time we had envisaged the possibility of free trade area relationships with anybody, we should certainly have provided for
this.
In the light of the foregoing, it seems that we made a false move when we sought waiver from the Pakistanis of Article IV to cover the continued levy of duty on Pakistani man-made fibre etc. goods when our EFTA partners were being relieved of these duties. We did not, however, seck similar waiver for AIFTA and we are thus in the difficulty that if we were to feel bound by the EFTA precedent, we could call our AIFTA position into question.
The one thing which is clear in relation to Pakistan is that the Bottomley letter envisaged the possibility of our doing precisely what we are now wanting to do and in what we want to do we shall be acting in conformity with our assurance in that letter that we would apply to other Commonwealth goods any duty that applied to Pakistani goods.
In the light of what I have said it seems to us that we can, with perfectly good conscience, hitch our approach to the Pakistanis to the Bottomley letter and leave it to them (if so minded) to raise questions about Articles II and IV. They may do this, but in a situation in which there may be chance of their not doing so, it seems to us that we do not want to go out of our way to make difficulty for ourselves by ourselves making any reference to these Articles. If they seek to introduce these Articles, we have the arguments I have mentioned for having ourselves ignored them; but this does not finally commit us, and if we find ourselves in the position that the Pakistanis are being legalistic but prepared to give us waivers, we can always climb down and accept them.
/Peter Carey
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