China–rare earths : export restrictions and the limits of textual interpretation

Abstract

The China—Rare Earths decision of the Appellate Body addressed two main issues: (i) whether China’s obligations not to impose export duties under its accession protocol are subject to exceptions under Article XX of GATT, and (ii) the scope of the exception for China’s export quota measures relating to conservation under Article XX(g) of GATT. In accord with its China—Raw Materials decision, the Appellate Body found that there is no textual basis for application of the Article XX exception to China’s export duty obligations. This interpretation exalted a narrow contextual approach over an approach to interpretation that would focus on broader context, object, and purpose. The Appellate Body also approved the Panel’s overall approach to determining the availability of the Article XX(g) exception. This approach focused on the design and structure of China’s quota measure, but left unresolved important issues, including the extent to which non-conservation purposes may prevent use of the exception and the role of empirical evidence of effects in these determinations. While the Appellate Body found that there is no “even-handedness” requirement in Article XX(g) itself, we argue that the chapeau’s requirement of non-discrimination is an appropriate additional criterion for determining whether a policy with a target of reducing extraction of a natural resource satisfies the requirements of Article XX.