The Applicability of Environmental Protection Exceptions to WTO-Plus Obligations: In View of theChina – Raw MaterialsandChina – Rare EarthsCases

Abstract

AbstractRecently, two disputes involving China's WTO-plus obligations have attracted great attention:China – Raw MaterialsandChina – Rare Earths. InChina – Raw Materials, China resorted to WTO environmental protection exceptions to justify its violation of the export duty elimination obligation outlined in paragraph 11.3 of the Protocol on the Accession of the People's Republic of China, which is clearly a WTO-plus obligation. However, China's recourse was rejected by the panel and then by the Appellate Body, as will probably happen inChina – Rare Earths. This article looks into the interpretation and finding of the applicability matter in the DSB reports inChina – Raw Materialsand further discusses the general applicability issue of environmental protection exceptions to the violation of WTO-plus obligations. As rebuttal to the DSB reports, this article argues that omissions or silence in paragraph 11.3 do not necessarily mean rights waiver, especially when the right involved is the essential right to justify the violation pursuant to environmental protection exceptions provided in Article XX(b) and (g) of the GATT. Also, it is illogical to refer to GATT generally when the WTO-plus obligation in paragraph 11.3 does not have any corresponding rules in GATT. More generally, with consideration of the nature of the environmental protection exceptions in Article XX and the conclusion process of the Protocol, as well as with consideration of the sustainable development objective of the WTO and the politically sensitive matters concerned inChina – Raw Materials, China should not be deprived of the right to defend its violation of the export duty obligation inChina – Raw Materials. Although the discussion in this article is mainly based on China's WTO-plus obligations, its reasoning may also be extensively applied to that of other acceding members if suitable.