Analysis On The Applicability Of Article 20 Of GATT Of Separate Opinion By One Panelist In WTO Rare Earths Case

Rare earths are non-renewable important natural resources, with extensive use in the development of economic society. China has relatively abundant rare earth resources, with its storage about 23% of the world whole storage. But China assumes the vast majority market supply of rare earth products globally. However, some developed countries which own not a few rare earths don’t exploit but keep for themselves. Chronically, they purchase a lot of rare earth products from China in extremely cheap price. With the everlasting demand in rare earths of the developed countries, China has to exploit and refine a large number of rare earth resources. As a result, China’s ecological environment goes through extreme destruction. So China starts to formulate and implement composite protect policy of rare earths, including export duties and export quotas. It is necessary to protect human, animal or plant life or health, which conforms to WTO rules. However, some developed countries attempt to exert pressure on China through DSB for their own trade benefits.In January 2012, WTO announced AB report of the raw materials case that the United States, the European Union and Mexico sued China. China failed the case. The appellant body ruled that article 20 of the GATT could not apply to paragraph 11.3 of China’s Accession Protocol. Not for long, in June 2012, the United States, the European Union, and Japan asked WTO panel to deal with China’s rare earths dispute. The two cases involved the same law issue, which was the applicability of article 20 of the GATT to paragraph 11.3 of China’s Accession Protocol. One may say that the result was doomed, so China had no need to response to rare earths case. However, China insisted on responding, and put forward new defense points different from those in raw materials case. In March 2014, the rare earths case panel ruled that China lost the lawsuit. Meanwhile, the media’s reports on the fail of China blotted out the sky and covered up the earth. They hardly imagined that one panelist supported China’s viewpoints on the applicability of article 20 of the GATT, and put forward his own separate opinion. And many third parties also supported China. These all encouraged China to make an appeal to the appellate body.With the announcement of the AB report on the rare earths case in August 2014, finally the whole case was over and China won the administration right of rare earths quotas, although its administration method didn’t meet the criterion. Meanwhile, for the applicability of article 20 of the GATT to paragraph 11.3 of China’s Accession Protocol, the appellate body thought that a specific and deep analysis was needed according to different cases. In fact, it denied the totally negate conclusion of the appellate body of raw materials case and supported the separate opinion by one panelist. The findings of appellate body also criticized the mistake of China’s chosen of not appealing paragraph 11.3 of China’s Accession Protocol.This article is aimed at taking the separate opinion by one panelist as key points, through holistic interpretation of WTO law systems, analysis whether article 20 of the GATT can apply to paragraph 11.3 of China’s Accession Protocol which prohibits export duties. That is, whether exception measures can be taken to protect human, animal or plant life or health. Furthermore, this article clarifies China’s WTO-plus obligations when entering into WTO and the legitimate rights of China. It offers necessary enlightenment for China’s response to WTO disputes in the future, and avoids misunderstanding and misinformation of the findings of rare earths case.