| The quantity and quality of trade in natural resources has increased by a large margin from 2000. On the other hand, with the dwindling reserves of natural resources and the countries more dependent on natural resources, especially in many developing countries due to the rapid development, their need and consumption of natural resources keep rising and strategic position of natural resources also will be rise. Thus, natural resources have become one of the most concerned goods international trade. However, over-exploitation and production of natural resources will bring a series of environmental problems, especially such exploration and production are more concentrated in developing countries, limited by its own technology as well as its concept, the environmental pollution problems in these countries are particularly serious.In recent years, some developing countries are beginning to realize the importance of the scarcity of natural resources and environmental issues, they began to take a series of export restrictions to protect their own natural resources and environment. Meanwhile, developing countries began to shift their economic strategy from exchanging natural resources for foreign exchange e to limit the exportation of natural resources, and these countries have adjusted its export policy and shrink exports of natural resources. However, the United States, European Union and Japan and other resource-importing countries strongly oppose restrictions on the export of natural resources, they believe that these export restrictions will make their national companies need to spend more of the cost to acquire these natural resources, thus affecting its domestic industry. Over time, the resource-exporting countries and importing countries will constraint on natural resource exports and generate contradictions and conflicts and the trade frictions in natural resources is growing. The export restrictions on natural resources in WTO dispute settlement mechanism are also in rising trend.For China alone, in recent years, the cases relating to export restrictions of natural resources occurred three times, they are Coke case of China and Europe in 2004, "Raw Material Case" and "Rare Earth Case". Coke case of China and Europe is the earliest case of China regarding to export restrictions in WTO, while it was resolved in the consultation phase and the program was not carried into the establishment of the panel. In the Reports of the Panel and Reports of the Appellate Body for "Raw Material Case" and "Rare Earth Case", China are losing in the end. This essay will be mainly about the "Rare Earth Case", introducing WTO measures on export restrictions and the export restrictions taken by WTO members and China, making legal analysis about "Rare Earth Case", and finally clarifying the influence and inspiration of "Rare Earth Case" on China.In "Rare Earth Case ", the Panel ruled that Chinese export duties, export quotas and administration and allocation of export quotas involved rare earth, tungsten, molybdenum, and other related products are complied with the relevant provisions of the WTO and the commitments made by China in China’s Accession Protocol. At the same time, the Panel rejected the European claims that the requirements of export performance when molybdenum enterprises’ applying for export quotas are constituting the discriminations against foreign enterprises, and also recognized China’s adopting the comprehensive environmental protection measures on rare earths, tungsten, molybdenum.On April 17, 2014, China raised a cross-appeal on "Rare Earth Case" to the WTO dispute settlement bodies. On August 7, 2014, the Appellate Body published the report of the Appellate Body. The report of the Appellate Body maintains the conclusions of the Panel that the export duties, export quotas and administration and allocation of export quotas adopting in the involved products do not comply with the relevant provisions of the WTO and China’s relating commitments in China’s Accession Protocol. Meanwhile, the Appellate Body support China’s appeal in the interpretation of some provisions of WTO rules.In fact, the Chinese failure in the "Rare Earth Case" is not surprising. WTO is established to promote the development of trade liberalization, though WTO rules of export duties are very broad without any specific constraints, WTO holds a negative attitude on the whole for any import and export restriction in goods trade, especially in recent years, some of the new members of WTO were asked in its Accession Protocol to make a special commitments for export duties on some goods, including the special commitments on export duties of natural resources. We can see that WTO’s attitudes towards export restrictions are inclined to adopting strict regulation.And China also made special commitments in China’s Accession Protocol on export restrictions of natural resources, which makes China face special difficulties: on the one hand, China made a commitment to limit the use of export duties in China’s Accession Protocol and therefore bears super WTO obligations, different from other members; on the other hand, China also need to comply with the relevant rules about export restrictions in GATT1994, especially the general obligations of abolishing quantitative restrictions. As a result, the range of export restrictions is narrowed and at the same time the kind of export restrictions is also limited. In fact, on the issue about export restrictions of natural resources, we can see that WTO almost do not reserves any policy space complying with WTO rule, and the judgement of "Raw Material Case" and "Rare Earth Case" precisely confirm.However, the government is not likely to completely liberalize its control of the natural resources, as the important strategic reserve materials of a country, and let the market fully adjustable, which may lead to the continual loss of scarce resources, harm to the long-term development of a country in diverse aspects. Therefore, how to control the export of natural resources to a certain extent without violating China’s obligations under international laws, which is the urgent problems we need to consider.The essay is divided into three parts, the first part is the introduction, and the second part is the main body, and the third part is the conclusion. Among them, the second part is divided into four chapters.The first chapter is mainly about the introductions of WTO rules on export restrictions. Among it, the first section is an overview of WTO export restrictions. There are almost no specific requirements on export duties, while the export quantity restrictions are prohibited in principle. The first section is divided into three parts, namely, the WTO negotiations on export restrictions, the principles of export restrictions and regulations of GATT1994. In previous negotiations of WTO, although this issue regarding to paying attention on the export restrictions of natural resource has been repeatedly proposed, as the developing countries’ and developed countries’ opinions on the issue are greatly different, the members has not reached a consensus so far. Section two introduces the export restrictions adopted by the members in details, which can be mainly divided into two categories, the export duties and export quantity restrictions(non-export duties), and mainly introducing the export quotas and export license in export quantity restrictions. Meanwhile, by "World Trade Report 2014" published by WTO, this section overviews the current status of restrictions of natural resources exportation.The second chapter reviews the Chinese export restrictions. Section One is about China’s accession commitments, the main contents are: China’s commitments to adopt export restrictions in line with the basic principle of transparency, which is embodied in paragraph 3 of Article 2 of China’s Accession Protocol; China’s commitments to take conditional export duty system, which is embodied in Article 11 of "China Working Group Report" and paragraphs 155 and 156 in China’s Accession Protocol; China’s commitments in terms of export licensing system, which is embodied in Article 7 and 8 of "China Working Group Report" and paragraphs 158 in China’s Accession Protocol; China’s commitments to abolish the limitation of minimum export price in principle; and China’s commitments to gradually broaden the restrictions of obtaining trade rights and the range of trade rights, without prejudice to China’s rights to manage trade in the way consistent with the provisions of "WTO Agreement". Section two analyzes the involved export restrictions in "Rare Earth Case", introducing the specific rules in China of export duties, export quotas and administration and allocation of export quotas, through the petitions of the United States, Europe and Japan in the "Rare Earth Case".The third chapter mainly conducts legal analysis of the "Rare Earth Case", from the petitions of complainants, the conclusions of "Rare Earth Case" and the analysis of China’s defense. Section One, the petitions of complainants can be summarized as China’s violation of its WTO accession commitments and the WTO principle of transparency. China’s mainly cites GATT1994 Article 20(b), and(g), as a defense. The second quarter, starting from the report of the panel, analyzes the defense of China. Section Three analyzes whether paragraph 11.3 of China’s Accession Protocol can be ruled by Article 20 of GATT1994, mainly through the Report of the Panel and the report of the Appellate Body, especially the dissent views of a member of the Panel, as well as the views of scholars.The fourth chapter focuses on the influence and revelation to China. The first Section analyzing the reasons for failure in "Rare Earth Case", and giving a brief introduction of the China’s adjustments to export restrictions after "Rare Earth Case". Since 2015, China has canceled the export quota of rare earth, tungsten and tungsten products, molybdenum and molybdenum products, replaced by export license management, and has eliminated the export quotas for rare earths from January 1, 2015, and will retain the export duty to May 2, 2015. Section two describing the reflection and countermeasures caused by "Rare Earth Case", on the one hand, we should learn to make use of WTO dispute settlement mechanism legally and rationally, on the other hand, we should actively seek substitutable measures that China can meet its own needs by rational use of various means with the premise of satisfying the relevant WTO provisions. |
PDF Full Text Request