| WTO safeguard measures, namely the emergency measures on certain products,specifically prescribed in the GATT1994 Article 19 and Agreement on Safeguards,mean that a WTO member is allowed by concerning WTO agreements to deviate fromits previous promises or duties temporarily on certain circumstances so as to lessendifficulties or pressure arising from realizing WTO promises or duties. Safeguardmeasures characterized by safety vein offer WTO members a remedy right. Whenunexpected situation emerges due to implementing trade liberalization, an affectedWTO member may adopt import limit measures legally in order to save a certaindomestic industry. It is the so called duty-free mechanism that WTO members havesufficient confidence and courage to push forward trade liberalization by means oflowering tariffs continuously and eliminating non-tariff barriers.Safeguard measures as trade remedy measures are the exception to WTOregulations. Solid theoretical foundations justify the reasonability of safeguardmeasures;however, safeguard measures with obvious trade protectionism against thebackground of trade liberalization must conform with WTO strict conditions.Specifically, attributes of safeguard measures are as follows: fairness, the applicationof safeguard measures are based on the fair trade;emergency, safeguard measurescould only be applied under particular circumstances with the following conditionsmet: first, owing to unexpected development;second, large increase of importproducts;third, the existence of serious injury or threat thereof;fourth, the causationbetween increased imports and serious injury or threat thereof;temporariness,safeguard measures could only be applied under urgent circumstances, but a certainindustry of a country is not likely to be on urgent conditions all times, inevitably theapplication of safeguard measures is temporary and must be eradicated under certaincircumstances;time-limit, almost all provisions on safeguard measures provide fortime-limit;non-discrimination, safeguard measures must be applied to a productirrespective of its resources;transparency, safeguard measures are targeted at fairtrade against the backdrop of fair competition, so once misused WTO members wouldincur great losses and the trade liberalization would be destroyed and it is no surprisethat the substantive and procedural regulations on safeguard measures embodytransparency.Whether safeguard measures should be applied in a non-discrimination manner orselectively has become one of the important issues in each negotiation in whichdifferent countries and interested groups made bargains and compromises. Theprocess recorded the history of the application of safeguard measures fromdiscrimination to non-discrimination and from no provision, ambiguity to prohibitionof selectivity.Article 2.2 of the Agreement on Safeguards finalized at Uruguay RoundNegotiation stipulated the non-discrimination of the application of the safeguardmeasures. This essay analyzes the causes of the non-discrimination of the applicationof the safeguard measures: from sources of law, the application of the safeguardmeasures should be non-discriminative;fair conducts treated fairly is the logicalstarting point of the non-discrimination of the application of the safeguard measures;the on-discrimination of the application of the safeguard measures is in conformitywith the Most-Favored-Nation Treatment Principle;the non-discrimination of theapplication of the safeguard measures is in line with the fundamental economictheories;the non-discrimination of the application of the safeguard measures directlyembodies the WTO transparency principle;the non-discrimination of the applicationof the safeguard measures is conductive to eliminating the "grey areas" measures;thenon-discrimination of the application of the safeguard measures contributes to lesssafeguard measures. Meanwhile, the values of the non-discrimination application ofthe safeguard measures have been illustrated, conductive to forming world economicatmosphere of equality, freedom, discipline, fairness and safety. However, there existsome problems on the non-discrimination of the application of the safeguard measures,such as selectivity on quota distribution, problems on "grey areas" measures, conflictbetween regional trade arrangements and the non-discrimination of the application ofthe safeguard measures as well as exemption provisions of the Article 11.1(c) in theAgreement on Safeguards.The essay falls into 3 parts:Chapter 1 illustrates the basic contents on WTO safeguard measures: concept of thesafeguard measures, history of the safeguard measures, theoretical foundations of thesafeguard measures and the attributes of the safeguard measures.Chapter 2 is on the relationship between the non-discrimination of the applicationand the safeguard measures: concept of the non-discrimination, history of theapplication of the safeguard measures, causes of the non-discrimination of theapplication of the safeguard measures, values on the non-discrimination of theapplication of the safeguard measures and less application frequency of the safeguardmeasures than anti-dumping measures due to the non-discrimination of the applicationof the safeguard measures and the preferential treatment of developing countries.Chapter 3 deals with the problems pertaining to non-discrimination of theapplication of the safeguard measures: selectivity on quota distribution, problems on"grey areas" measures, conflict between regional trade arrangements and thenon-discrimination of the application of the safeguard measures as well as theexemption provisions of Article 11.1(c) in the Agreement on Safeguards.Over decades of the development of trade practices as well as numerous tradenegotiations, the non-discrimination of the application of the safeguard measures hasbeen finalized at Uruguay Round Negotiation. Unfortunately, selective safeguardmeasures have not yet been eliminated in the Agreement on Safeguards, which is theoutcomes of WTO members' compromises-making each other and therefore open aback door for the selective application of WTO safeguard measures.
|
PDF Full Text Request