Appellate Body Report in China: Rare Earths - Addressing Violations of WTO-Plus Obligations

摘要

The Appellate Body has once again rejected the ability of China, a recently acceded World Trade Organization (WTO) Member, to have recourse to Article XX of the GATT 1994 to justify a violation of a WTO-plus obligation. It emphasized that even an express textual reference to Article XX in the relevant provision in an Accession Protocol is not dispositive as to whether an Article XX defence is available to that Member to justify a breach of a WTO-plus obligation. Rather, that determination must be conducted on a case-by-case basis, taking into account the text and context of the relevant provisions in the Accession Protocol, the agreements in the WTO legal framework, and the nature of the obligation at issue. This latest report in the trilogy of cases suggests that it will be extremely difficult for a recently acceded Member to have recourse to a general exception to justify a violation of a WTO-plus obligation.