GATT一般例外條款於WTO入會議定書之適用可能性

Abstract

WTO Accession Protocol (AP), a legal instrument concluded between the WTO and new Member at the time of accession, has received more and more attention recently because it no longer functions as a confirmation of compliance with the existing WTO disciplines, it starts to contain Member-specific substantive obligations that deviate from the existing WTO rules. China’s AP and Russia’s AP are cases in point. When being found violating the obligations under the AP, acceding Members purport to invoke general exceptions under the GATT as a defense, claiming to pursue a non-trade policy objective. This defense stirs up lots of discussions. The most important and thorny issue in this matter is the applicability of GATT Art. XX in the AP. That is, whether GATT Art. XX can extend its application beyond the GATT and justify a violation in a separate agreement under the WTO, i.e. the AP. This is the focus of this thesis. The applicability matter has been addressed in two recent cases, China – Publications and Audiovisual Products and China – Raw Materials. WTO judiciary has made a major shift in its attitude, from avoiding this question to providing an answer. However, the reasoning and ruling in these two cases receive many critiques from the academia. This thesis will firstly provide background knowledge of the AP and GATT Art. XX with an aim to illuminate the relationship between these two. Then, a detailed account of China – Publications and Audiovisual Products and China – Raw Materials will be presented, along with some comments. Finally, this thesis proposes that AP obligations that are related to or built upon the obligations under the GATT should be treated like GATT obligations, including the recourse to GATT Art. XX defense.

WTO Accession Protocol (AP), a legal instrument concluded between the WTO and new Member at the time of accession, has received more and more attention recently because it no longer functions as a confirmation of compliance with the existing WTO disciplines, it starts to contain Member-specific substantive obligations that deviate from the existing WTO rules. China’s AP and Russia’s AP are cases in point. When being found violating the obligations under the AP, acceding Members purport to invoke general exceptions under the GATT as a defense, claiming to pursue a non-trade policy objective. This defense stirs up lots of discussions. The most important and thorny issue in this matter is the applicability of GATT Art. XX in the AP. That is, whether GATT Art. XX can extend its application beyond the GATT and justify a violation in a separate agreement under the WTO, i.e. the AP. This is the focus of this thesis. The applicability matter has been addressed in two recent cases, China – Publications and Audiovisual Products and China – Raw Materials. WTO judiciary has made a major shift in its attitude, from avoiding this question to providing an answer. However, the reasoning and ruling in these two cases receive many critiques from the academia. This thesis will firstly provide background knowledge of the AP and GATT Art. XX with an aim to illuminate the relationship between these two. Then, a detailed account of China – Publications and Audiovisual Products and China – Raw Materials will be presented, along with some comments. Finally, this thesis proposes that AP obligations that are related to or built upon the obligations under the GATT should be treated like GATT obligations, including the recourse to GATT Art. XX defense.