The applicability of GATT Article XX to China’s WTO Accession Protocol in the Appellate Body Report of the China-Raw Materials case: suggestions for a different interpretative approach

Abstract

On 30 January 2012, the Appellate Body handed down a long awaited ruling in the dispute brought by the US, the EU and Mexico against several export restrictions imposed by China on raw materials. The three Appellate Members concluded inter alia that there is no basis in China’s Accession Protocol to allow the application of GATT Article XX to Paragraph 11.3, the WTO-plus provision of the Accession Protocol requiring Beijing to eliminate export duties. While such AB interpretative result seriously runs the risk of creating a highly controversial and irrational aspect of the multilateral trade system, also difficult to reconcile with the principle of permanent sovereignty over natural resources, the present essay proposes a different coordinated reading between Paragraph 11.3 of the China’s Accession Protocol and the GATT general exceptions’ clause, with the aim of indicating a hermeneutic outcome in harmony with the principle of sustainable development enshrined in the Preamble of the WTO Agreement.