Reforming WTO Discipline on Export Duties: Sovereignty Over Natural Resources, Economic Development and Environmental Protection

The current World Trade Organization (WTO) regime on export restraints comprises two extremes: at one end is the near-complete freedom to levy export duties enjoyed by most Members, which renders theWTO discipline on export restrictions largely ineffective; at the other end, the rigid obligations imposed on several acceding Members prohibiting the use of export duties for any purpose.The recent WTO ruling in China-Raw Materials has only solidified the latter extreme. This article seeks to expose the irrationality of the current regime, especially the problems created by the rigid obligations of the several acceding Members. It contends that such obligations deprive these Members of their ownership right to claim a larger share of their natural resources for domestic use and of an effective tool for managing environmental externalities associated with the resource products exported.The virtual immutability of such obligations is at odds with the principle of permanent sovereignty over natural resources.To rectify these problems, this article proposes integrating all stand-alone export concessions into General Agreement on Tariffs andTrade (GATT) schedules, which would provide the acceding Members with the policy space and flexibility available under the GATT. It is also submitted that the key to gaining support from developing countries for the establishment of a system-wide discipline lies in the recognition of legitimate functions of export duties. Rather than pushing for their elimination, the WTO should aim to regulate export duties in the same manner as its regulation of import duties

The Conundrum of WTO Accession Protocols: In Search of Legality and Legitimacy

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: the WTO may prescribe more stringent rules for acceded members, depending on the result of individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain to be answered. The accession protocols effectively modify the provisions of the WTO multilateral trade agreements, but the legal basis for so doing has never been properly explained and the relationship between the accession protocols and the WTO agreements remains unclear. Normatively, differential treatment of acceded members derogates from the WTO principle of nondiscrimination, but does so without proper justification. Confusion over the legal nature of accession protocols and the lack of clear rationale for the country-specific rules have led to problematic jurisprudence, creating uncertainty in the rights and obligations of acceded members vis-ˆ-vis other members of the WTO. This article aims to resolve the conundrum of WTO accession protocols. Building upon existing literature, the author takes a broad comparative and historical approach to examining WTO accession practice. On the question of legality, the article proposes that WTO accession protocols should be characterized as subsequent agreements modifying the WTO agreements, or more precisely as subsequent practice of an international organization modifying its underlying treaties, and that their relationship with the WTO agreements should be defined accordingly. In light of this understanding, the article examines and critiques the Appellate BodyÕs assessment of the relationship between accession protocols and the WTO agreements in the recent case of China-Rare Earths. On the question of legitimacy, the article identifies the lack of reason and transparency in the accession rules as the main issues, and critiques the Òentry feeÓ theory offered by a WTO panel as the justification for any accession rules. The article then makes suggestions on what should and can be done to mitigate the legitimacy deficits created by WTO accession practice

Pushing the Limits of Global Governance: Trading Rights, Censorship and WTO Jurisprudence -- A Commentary on the China-Publications Case

For decades, China has maintained State import monopoly in cultural products. The opaque State trading operations ensure a maximum level of flexibility and efficacy in the government censorship of imports. The WTO judiciary held in the China-Publicationscase that this practice is inconsistent with China\u27s trading rights commitments under its Accession Protocol and cannot be justified by the public morals exception of the General Agreement on Tariffs and Trade. To comply with the WTO ruling, China must restructure its censorship regime, which it apparently is not prepared to do. This article analyses the implications of the WTO decision and provides a critical assessment of the new WTO jurisprudence regarding trading rights and the China Accession Protocol

The Challenge of Interpreting \u27WTO-Plus\u27 Provisions

This paper seeks to address special interpretive issues raised by the China Accession Protocol, focusing on provisions that prescribe more stringent rules for China than generally applicable WTO disciplines. These ‘WTO-plus’ provisions have already been involved in several WTO disputes. In the light of these disputes, the paper analyzes the interpretive challenge presented by the Protocol and suggests that, to meet the challenge, WTO adjudicators need to embrace a more holistic and systemic interpretive approach. The paper then proposes three working principles that may help to interpret the WTO-plus provisions of the Protocol in a coherent and systematic manner