Reflection On China-Measures Related To The Exportation Of Various Raw Materials

China–Measures Related to the Exportation of Various Raw Materials is thefirst case that China as respondent in the WTO dispute settlement body involving theexport restrictions of various raw materials. This case has lasted two years and sevenmonths, after the Group procedures and the procedures of the Appellate Body, withthe result of China’s overall losing. It is obvious that the United States and theEuropean Union is using this case to test the waters, and then complaint about China’srestraints on the export from rare earths which is in a more strategic position.Although the past is the past, in order to win the new round of the world’s contentionof the scarce resources, we have to sum up the experiences and lessons we can learnfrom the case.The key issues of this case consist of whether China’s restraints on the exportfrom China of various forms of raw materials is in violation of11.3of Part I of theProtocol on the Accession of the People’s Republic of China, whether China isallowed to use the general exceptions in Article XX of the GATT1994to justify itsWTO-inconsistent export duties, and if China is able to rely on certain exceptionsavailable in the WTO rules to justify its export duties, whether it can comply with therequirements of those exceptions. The Panel found that China’s export duties wereinconsistent with the commitments that China had agreed to in its Protocol ofAccession. The Panel found that the wording of China’s Protocol of Accession did notallow China to use the general exceptions in Article XX of the GATT1994to justifyits WTO-inconsistent export duties. The Panel also considered that even if Chinawere able to rely on certain exceptions available in the WTO rules to justify its exportduties, it had not complied with the requirements of those exceptions. Finally, theappellate body largely supported the ruling of the Panel.Faced with this adverse outcome, we can learn lessons from two aspects. First,the Panel’s legal analysis of this case is not perfect. On the analysis of whether Chinais allowed to use the general exceptions in Article XX of the GATT1994to justify itsWTO-inconsistent export duties, the Panel did not use the customary rules ofinterpretation of public international law correctly, with the over-expended using of the text interpretation and the ignorance of the good faith interpretation and theteleological interpretation. On the analysis of whether China can comply with therequirements of the general exceptions in Article XX of the GATT1994to justify itsWTO-inconsistent export duties, the Panel erred in interpreting the phrase “relate tothe conservation of” and “made effective in conjunction with” in Article XX(g) of theGATT1994. Second, China has not prepared enough in the responding skills and theusing of evidence. During the ten years in WTO, China has already accumulatedsome experience as being a respondent, but there are still many deficiencies ininterpreting the WTO rules and there are also some flaws in the collection and use ofevidence. In order to win the new round of the world’s contention of the scarceresources, on the one hand we have to make more effort to study the text and thecases concerning the general exceptions in Article XX of the GATT1994, on theother hand we’d better pay more attention on the collection and use of evidence.Therefore, although the results of the case is largely not conducive to carry outthe macro strategy of the transformation of economic growth mode and the resourceprotection policies, but we can still sum up the experience and lessons that we canlearn from the case. This article starts with the key issues of the case, based on thecustomary rules of interpretation of public international law and the past GATT/WTOcases, through viewing the legal analysis of the Panel and the Appellate Body,pointing out the Panel’s error in legal interpretation and legal reasoning, clarifyingChina’s mistakes and shortcomings in this case, providing defense ideas for the ongoing China-Measures Related to the Exportation of Rare Earths, Tungsten andMolybdenum. In short, if we want to seize the initiative in the new round of theworld’s contention of scarce resources, we should on the one hand strengthensupervision and in the end improve our resource protection system, on the other handmake more effort to study the text and the cases concerning the general exceptions inArticle XX of the GATT1994and pay more attention on the proper use of evidence.