Applicability of GATT Article XX in China – Raw Materials: A Clash within the WTO Agreement
Journal of International Economic Law, Vol. 15(4), p. 1007-1031, December 2012
22 Pages Posted: 5 May 2017
Date Written: October 6, 2012
The Appellate Body’s interpretation in China – Raw Materials regarding the applicability of GATT Article XX to China’s Accession Protocol is highly controversial and stimulates wide debates in academia. The controversy is rooted in the absence of an explicit mention of ‘consistency with the GATT 1994’ in Paragraph 11.3 of China’s Accession Protocol. That absence constrains China’s defense in instances when it must violate its export duty elimination commitments under the Accession Protocol by resorting to GATT Article XX. This article disagrees with the Appellate Body’s legal interpretation in China – Raw Materials and provides a critical review of the Appellate Body’s logical principle that ‘absence equates to waiver.’ The Appellate Body’s interpretation on the relationship between GATT Article XX and China’s Accession Protocol contradicted former DSB practices, demonstrated a failure to interpret the WTO Agreement in a systemic manner, and unfortunately resulted in inappropriateness in treaty interpretation.
Keywords: China, Raw Materials, GATT Article XX, Accession Protocol, Treaty Interpretation
JEL Classification: K33, Q32, Q37
Suggested Citation: Suggested Citation