Study On The Identification Of Context Of China’s Accession Protocol

As a bridge connecting China and WTO, China’s Accession Protocol serves as a basis for acceding to WTO, which is inevitable to WTO Dispute Settlement System. It contains the whole WTO legal system, ranging from WTO general obligations to WTO-Plus obligations. Besides, China’s Accession Protocol itself doesn’t identify the relationship between Protocol and WTO related multilateral agreements, which brings about challenges for identifying its context. However, identifying the context serves as a prerequisite for Contextual Interpretation. WTO Dispute Settlement Body should firstly analyze the context for a phrase or sentence. Based on China- raw materials and China- rare earths cases, the way in which panel and Appellate Body use context is not adequate. Because they find that the absence of an explicit mention of GATT 1994 in Paragraph 11.3 deprives of the possibility of regarding GATT 1994 as context. They define the legal status of China’s Accession Protocol differently, which may also lead to predicament of identifying the context. Besides, they ignore the relationship between Paragraph 11.3 of China’s Accession Protocol and related WTO multilateral agreements, which may result in the limited context. In this way, our rights under WTO legal system may be impaired. The way in which Appellate Body identify the context has been drastically debated. Thus, this paper addresses the problems confronted in identifying the context of China’s Accession Protocol.This paper integrates textual analysis, historical analysis and case study to analyze the contextual interpretation, challenges of identifying the context of China’s Accession Protocol and how to solve them.Apart from the introduction, this paper is divided into four parts.The First Part: The introduction of contextual interpretation. It begins with identifying the definition and functions of it. It can be used to confirm the ordinary meaning, remedy the gap between China’s Accession Protocol and other related agreements. Then it moves to distinctively identify its relationships with Ordinary Meaning, Object and Purpose, in Good Faith and Supplementary Means of Interpretation. At last, it identifies the context contained in Article 31 of Vienna Convention on the Law of Treaties, and argues that the context is not limited to this article.The Second Part: How Appellate Body identifies the context of China’s Accession Protocol in practice. This part analyzes how Panel and Appellate Body define the context of China’s Accession Protocol. It is based on three cases, namely, China-Audiovisual Products, China-Raw Materials and China-Rare Earths.The Third Part: The problems of identifying the context of China’s Accession Protocol. This part is analyzed based on cases related to China’s Accession Protocol. Panel and Appellate Body inappropriately indentify the context of China’s Accession Protocol. Firstly, they excessively rely on the wording of China’s Accession Protocol, which may result in the limited context. Secondly, they differently define the legal position of China’s Accession Protocol, to some extent, may affect the scope of context. Thirdly, they ignore the relationship between specific provision in China’s Accession Protocol and provisions in other multilateral agreements, which may affect the scope of context.The Fourth Part: It provides solutions to problems of identifying context of China’s Accession Protocol. This part is in accordance with the challenges in The Third Part. Based on China’s situation, it tries to provide the following solutions. Firstly, it suggests that cross – reference can be used to build the relationship between China’s Accession Protocol and other related agreements. Cross – reference may not confine to explicit textual connection, it may assume a matter of logic an implied reference to other treaty provisions, especially GATT 1994. Secondly, it defines China’s Accession Protocol as a multilateral agreement in WTO legal system, since all the provisions under WTO legal system are enforceable. Lastly, it suggests that the corresponding WTO general obligations can provide context for WTO-Plus obligations. WTO general obligations and WTO-Plus obligations, to some extent, are related. The latter is more serious than the former one.