This thesis, together with the majority of scholars, suggests that a contextual reading of the AP provisions will provide a more satisfying answer to the applicability issue because a contextual interpretation will better illuminate the relationship between the AP and the WTO Agreement and identify the systemic position of the AP obligations.568 Because of the unique legal nature and characteristic of the AP obligations, emphasis should be given to the relevant context of the AP provision at issue. The AP is not a self-contained legal instrument and it does not contain a coherent set of rules on a certain subject matter.569 It consists of various requests from incumbent Members and those requests run across a wide range of subject matters within the WTO regime.570 Some AP obligations prescribe WTO-plus obligations, while some prescribe WTO-minus obligations.571 To correctly understand the systemic position of the AP obligations within the WTO regime, it is necessary to identify the relevant context of the AP obligations, i.e. the relevant basic obligations under the WTO Agreement.572 Such context can usually be discerned from the subject matter the AP provision is dealing with or the text in the AP provision that makes reference to the basic WTO rules.573 Once the context is identified, the AP obligations should be read with the related WTO agreement,
567 Qin, The Challenge of Interpreting “WTO-PLUS” Provisions, supra note 14, at 160.
568 THOMAS AU, RECONCILING WTO GENERAL EXCEPTIONS WITH CHINA’S ACCESSION PROTOCOL (Social Science Research Network, SSRN Scholarly Paper ID 2199967, January 13, 2013), available at http://papers.ssrn.com/abstract=2199967; Gu, supra note 47; Liu, supra note 47; Qin, The Challenge of Interpreting “WTO-PLUS” Provisions, supra note 14.
569 Yu, supra note 164, at 477.
570 Qin, Pushing the Limits of Global Governance, supra note 73, at 52.
571 Yamaoka, supra note 6; Charnovitz, supra note 33; Cattaneo & Braga, supra note 16; Qin, “WTO-plus”
Obligations and Their Implications for the World Trade Organization Legal System, supra note 17.
572 Qin, The Challenge of Interpreting “WTO-PLUS” Provisions, supra note 14.
573 Id.; Liu, supra note 47.
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including the exceptions therein. That is to say, the exceptions in the corresponding agreement should be made available to the AP obligations, unless the recourse of GATT Art. XX will impede the object and purpose of the AP obligations or such recourse is explicitly excluded by the AP obligations.574 Take the situation in China – Publications and Audiovisual Products as an example. The breached AP provision provides a more stringent obligation on state-trading practices than the basic WTO regulation, i.e. GATT Art. XVII. In this way, the AP obligation should be read with the corresponding agreement, i.e. the GATT, as one instrument, including general exceptions under the GATT.
Most importantly, this contextual interpretation ensures that all WTO Members will have a fair access to general exceptions under GATT Art. XX when breaching rules that regulate the same subject matter. It will be unfair and unreasonable that violation of the basic WTO rules under the GATT can be justified by GATT Art. XX, whereas the AP obligations that are related to or built upon the GATT obligations cannot.575 The AP obligations that deviate from the regular GATT rules are intended to supplement the basic GATT rules. Thus, the AP obligations that modify the GATT obligations should be treated as the basic GATT obligations, including the recourse to GATT Art. XX when breached. Otherwise, the uniformity of the WTO rules will be fragmented because breaches of GATT rules can be justified by GATT Art. XX and on the contrary breaches of the AP rules that regulate the same subject matter cannot.576 Take the situation in China – Raw Materials as an example.
Paragraph 11.3 under the AP regulates export tariffs, one form of the export restrictions.
Likewise, GATT Art. XI prescribes obligations on export quotas and export licenses, which are forms of the export restrictions, too. It would be unreasonable that China can violate
574 Qin, The Predicament of China’s “WTO-Plus” Obligation to Eliminate Export Duties, supra note 423.
575 Qin, Pushing the Limits of Global Governance, supra note 73; Qin, The Predicament of China’s “WTO-Plus”
Obligation to Eliminate Export Duties, supra note 423.
576 See Qin, “WTO-plus” Obligations and Their Implications for the World Trade Organization Legal System, supra note 17; Au, supra note 568.
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obligations on export quotas and export licenses to pursue public policies, whereas when the inconsistent measure takes the form of export tariffs, China is denied of promotion of public policies. This thesis cannot see any valid basis for such distinction. Indeed, the Member-specific obligations under the AP has ignored the single undertaking approach embraced in the Uruguay Round negotiation and undermined the coherence of WTO law.577 Affirming applicability of GATT Art. XX in GATT-related AP obligations can ease such tension because the GATT-related AP obligations is to some extent incorporating into the multilateral trading mechanism.
The lack of specific reference to GATT Art. XX should be interpreted in light of relevant context not merely the text itself. China – Raw Materials ruled that the lack of textual reference is a conscious choice of acceding Members and the WTO, a deliberate omission.578 However, their reasoning overlooks other important context. The Panel and AB did not examine paragraph 11.3 of the AP from the systemic context. If they had properly placed the export duties commitments in the systemic context, they would have realized that paragraph 11.3 is closely related to export restrictions under the GATT and the GATT, including GATT Art. XX, is an important context. As stated by the AB in Canada – Autos, “omissions in different contexts may have different meanings, and omission, in and of itself, is not necessarily dispositive.” 579 Examining the omission in the AP with the contextual interpretation provided above, this thesis considers that specific reference to GATT Art. XX is not necessary. Since the AP obligations are read together with their relevant rules under the
577 Chien-Huei Wu, Assistant Research Fellow, Academia Sinica, The Fragmentation of The Multilateral Trading System: The Case of Trading Rules on Export Restrictions, Symposium on International Economic Law:
New Issues and Challenges (Dec. 3, 2012); Qin, “WTO-plus” Obligations and Their Implications for the World Trade Organization Legal System, supra note 17; Cattaneo & Braga, supra note 16; Charnovitz, supra note 33.
578 China – Publications and Audiovisual Products Panel Report, ¶¶ 7.129, 7.138; China – Publications and Audiovisual Products AB Report, ¶¶ 303-306.
579 Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, ¶ 138, WT/DS139/AB/R, WT/DS142/AB/R (June 19, 2000).
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GATT, it does not need explicit mentioning that GATT Art. XX is an available defense.
Besides, it is impractical to make reference to GATT Art. XX in every provision of the AP.
Thus, specific reference is not needed for GATT Art. XX to apply when the AP obligations are related to or built upon the obligations under the GATT.
Given the inherent nature of GATT Art. XX, the preclusion of GATT Art. XX will have to be explicitly expressed. States inherently have the right to regulate trade. This is confirmed by the AB in China – Publications and Audiovisual Products, which made clear that States enjoy an inherent right to regulate trade and this inherent right is not bestowed by any international agreement.580 When a State joins the WTO, its regulatory autonomy is disciplined by WTO rules. GATT Art. XX is one of the important rules on regulating Members’ exercise of such inherent right to promote public policies. That is, no granting is needed when Members employ regulatory measures. Members are only required to follow relevant WTO rules, such as the necessity requirement under GATT Art. XX, in exercise of their regulatory autonomy. In this way, a Member does not need a textual reference or endorsement to comply with GATT Art. XX. The inherent right to regulate trade can only be renounced by Members’ expressed choice.581 Accordingly, this thesis argues that the application of GATT Art. XX is barred when it is expressively stated.
Section 4 Taking Account of the Object and Purpose of the WTO Agreements and the