The Conflict And Applicability Between GATT Article XX And Paragraph 11.3 Of China’s Accession Protocol

In the WTO judicial practice, member states can invoke the general exception rule of GATT Article XX to justify their measures which were inconsistent with the WTO rules for the purposes such as to protect public morals, protect human life or health, conservation of exhaustible natural resources. However, in respect to the measures which violated the paragraph 11.3 of China’s Accession Protocol, in both raw material case and rare earth case, the DSB found that China cannot invoke GATT Article XX as a defense to justify its measures. These findings obviously impaired China’s entitled rights. Hence, through the case analysis approach, this article tried to analyse the relationship between GATT Article XX and paragraph 11.3 of China’s Accession Protocol, present the conflicts that WTO DSB found between them and discover the potential applicability between them.This article includes five sections. Section I is the introduction which mainly introduced the origin and background of the research. Section V is the conclusion, which gave the author’s outlook of rare earth case appeal result and some brief advises to the future. The three sections left are the main body of this article. They are as follows:Section Ⅱ starting from the nature and feature of the relevant clause, analysed the content of China’s Accession Protocol and GATT1994 Article XX respectively combined with different legal interpretation method. I selected textual interpretation approach and the teleological interpretation approach to conduct the analysis and tried to describe the profile of their relationship.Section Ⅲ presented the conflicts that Panels and Appeal Bodies found that whether the paragraph 11.3 of China’s Accession Protocol was subjected to GATT Article XX in different cases. The cases involved are China-Publication and Audiovisual Products case, Raw Material case and the latest released Rare Earth case. Through the analysis of the conclusions of Panel and Appeal Body, we can get the DSB’s analysis method and attitude. On this basis, to a certain extent, we can expect that the WTO DSB would still prefer to find that there are conflicts between paragraph 11.3 of China’s Accession Protocol and GATT Article XX in the future.Section IV discovered the potential applicability of GATT Article XX to paragraph 11.3 of the China’s Accession Protocol on the basis of discussion in Section Ⅲ. I still focused on the panel report, especially emphasized the dissenting opinion in Rare Earth Panel Report. In my opinion, the legal interpretation and analysis on Trading Rights in Rare Earth Panel Report can totally be used as significant arguments and reasons to justify the applicability of GATT Article XX to paragraph 11.3 of China’s Accession Protocol.