Study On The Applicability Of WTO General Exceptions

Many disputes are related to environmental protection and free trade.On the one hand, environmental pollution, waste of resources, and thephenomenon of destruction of the ecological balance have attracted moreand more attention; On the other hand, some developed countries build“green trade barriers” to the products from developing countries in the nameof “free trade”. China—Measures Related to the Exportation of RareEarths, Tungsten and Molybdenum is the second case that after the RawMaterials Case about dispute of restriction on export of exhaustible naturalresources. Although China lost in the panel stage, discussion on theapplication of the general exceptions and the protection of resources and theenvironment is not over.Article XX of GATT1994is used to take derogation or exemption ofWTO obligations so that the WTO members can safeguard the publicinterests or national public policy objectives, which also known as “GeneralExceptions” clause. It is strong support to “WTO Agreement” preface, butalso a clear recognition of the overall purpose of the WTO. As an important natural resources protection clause under the terms of the WTO system, theGeneral Exceptions clause has become a shield to avoid the generalobligation. Since China has made numbers of “WTO plus” obligations, thereal problem is the issue of the applicability of General Exceptions to“China’s Accession Protocol to the WTO”. How to invoke the GeneralExceptions is the key to win the case.This paper analyzes the applicability of General Exceptions by usingstandardized methods and case studies, doing legal analysis of the principalterms of the General Exceptions to explore the relationship between theGeneral Exceptions and “Accession Protocol”. Then through analysis of theChina Rare Earth Case to determine that the application of GeneralExceptions needs clear rules and clear references. This paper aims to explorethe applicability of General Exceptions to the Accession Protocol, especiallysection of Article11.3by China Rare Earth Case combined with other tradedisputes practice. Finally, it proposes suggestions and measures on theexport restrictions and to preserve our legitimate interests in internationaltrade.