原材料案专家组关于第20条的判决(1)

原材料案专家组关于第20条的判决节选 （专家组报告第7.110段至第7.160段） WT/DS394/R WT/DS395/R WT/DS398/R 5 July 2011 (11-3179) CHINA – MEASURES RELATED TO THE EXPORTATION OF VARIOUS RAW MATERIALS Reports of the Panel (a) Whether Article XX of the GATT 1994 is available as a defence to a claim under Paragraph 11.3 of China's Accession Protocol 7.110 China argues that Paragraph 11.3 of its Accession Protocol and the reference to exceptional circumstances in Annex 6 support China's rights to invoke the defences of Article XX. For China, Article XX may be used to justify the application of export duties to non-ferrous metal scrap of zinc, magnesium metal, and manganese metal; to coke, magnesium metal and manganese metal; and to fluorspar. For China, the wording of Paragraph 11.3 of the Accession Protocol and of Paragraph 170 of the Working Party Report support the interpretation that China's Accession Protocol as a whole, together with the covered agreements forming the WTO Single Undertaking , provide China with the right to invoke GATT Article XX justifications for its export duties inconsistent with its Accession Protocol. 7.111 The complainants argue that China is not entitled to resort to the defences of Article XX to justify export duties inconsistent with Paragraph 11.3 of China's Accession Protocol. For the complainants, this is clear from the wording of Paragraph 11.3 of the Accession Protocol and the related provisions of the Working Party Report. They argue that the defences of Article XX are available only for GATT violations, or when Article XX justifications have been incorporated by reference into the relevant part of another WTO agreement. WTO Members' Accession Protocols are integral parts of the WTO Agreement (i) WTO Members' Accession Protocols are integral parts of the WTO Agreement 7.112 Accession to the WTO is achieved through negotiation with other WTO Members. Pursuant to Article XII of the Marrakesh Agreement, accessions take place "on terms to be agreed" between the acceding Member and the WTO membership. Most accession processes take several years to complete and lead to detailed negotiated provisions. The terms of each WTO Member's accession are set out in its Accession Protocol and accompanying Working Party Report. The negotiated agreement between the WTO membership and the acceding Member results in a delicate balance of rights and obligations, which are reflected in the specific wording of each commitment set out in these documents. Ultimately, the acceding Member and the WTO membership recognize that the intensively negotiated content of an accession package is the "entry fee" to the WTO system. 7.113 WTO Members' accession protocols are considered to form integral parts of the WTO Agreement. For example, Paragraph 1.2 of Part I of China's Accession Protocol provides: "The WTO Agreement to which China accedes shall be the WTO Agreement as rectified, amended or otherwise modified by such legal instruments as may have entered into force before the date of accession. This Protocol, which shall include the commitments referred to in paragraph 342 of the Working Party Report, shall be an integral part of the WTO Agreement." (italics added) 7.114 In this dispute, as with previous disputes concerned with China's Accession Protocol, all parties agree that China's Accession Protocol forms an integral part of the WTO Agreement. Moreover, all parties agree that WTO Members can initiate WTO dispute settlement proceedings on the basis of a claim of violation of China's Accession Protocol. Finally, all parties agree that commitments included in the related Working Party Report, and incorporated into the Accession Protocol by cross-reference, are binding and enforceable through WTO dispute settlement proceedings. 7.115 Accordingly, the Panel will interpret the provisions of China's Accession Protocol – like those of the WTO covered agreements – in accordance with the customary rules of interpretation of public international law, including those codified in Articles 31, 32 and 33 of the Vienna Convention. (ii) The availability of Article XX of the GATT 1994 for violations of Paragraph 11.3 of China's Accession Protocol 7.116 The availability of the defences provided for in Article XX of the GATT 1994 raises questions on the legal status of accession protocols within the WTO Agreement, and the relationship between different instruments within the WTO legal and institutional system, and in particular in this dispute, between Paragraph 11.3 of China's Accession Protocol and the other components of the WTO Agreement. 7.117 The Appellate Body has interpreted China's Accession Protocol on two previous occasions , once dealing with the availability of Article XX as a defence to justify a violation of China's Accession Protocol. In China – Publications and Audiovisual Products, China invoked Article XX of the GATT 1994 to justify a violation of Paragraph 5.1 of its Accession Protocol dealing with trading rights. In its assessment, the Appellate Body did not discuss the systemic relationship between provisions of China's Accession Protocol and those of the GATT 1994, within the WTO Agreement. The Appellate Body instead focussed on the text of the relevant provisions of the Protocol, including an examination of the meaning of the particular terms at issue, as well as the surrounding context and overall structure of the Accession Protocol. 7.118 Paragraph 5.1 of China's Accession Protocol provides: "Without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with this Protocol..." 7.119 The Appellate Body interpreted the language contained in the introductory clause of Paragraph 5.1 of China's Accession Protocol – "without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement" – to mean that the justifications of Article XX of the GATT 1994 were incorporated, by way of reference, into the Protocol and this formed a constituent part of this specific accession commitment. Consequently, China could rely on this incorporation to invoke Article XX as a defence for a violation of Article 5.1 of its Accession Protocol. Ultimately, the Appellate Body rejected China's Article XX defence because the conditions set out in Article XX, as incorporated into this specific accession commitment, had not been met. 7.120 In the present dispute, the Panel is not dealing with Paragraph 5.1 of China's Accession Protocol; rather the Panel must interpret the altogether different language found in Paragraph 11.3 of China's Accession Protocol in order to determine whether GATT Article XX defences are available to justify violations of Paragraph 11.3 of China's Accession Protocol. Interpretation of Paragraph 11.3 of China's Accession Protocol Ordinary meaning 7.121 Paragraph 11.3 of China's Accession Protocol provides: "China shall eliminate all taxes and charges applied to exports unless specifically provided for in Annex 6 of this Protocol or applied in conformity with the provisions of Article VIII of the GATT 1994." 7.122 For the Panel, the ordinary meaning of the terms "shall eliminate" is that China, at the time of the conclusion of its Accession Protocol, was maintaining export duties. The complainants report that at the time of its accession to the WTO, China maintained export duties on 58 products. Annex 6 of China's Accession Protocol lists 84 products on which some export duties were possible. At the time of China's accession to the WTO, WTO Members and China agreed that China would not maintain any export tariff taxes and charges, except on those 84 products and within the maximum levels provided in Annex 6, or if such charges could be justified under GATT Article VIII. 7.123 In Annex 6, at the end of this list of 84 products for which maximum duty rates are provided, the following paragraph appears: "China confirmed that the tariff levels included in this Annex are maximum levels which will not be exceeded. China confirmed furthermore that it would not increase the presently applied rates, except under exceptional circumstances. If such circumstances occurred, China would consult with affected members prior to increasing applied tariffs with a view to finding a mutually acceptable solution." 7.124 The Panel notes that Paragraph 11.3 of China's Accession Protocol does not include any express reference to Article XX of the GATT 1994, or to provisions of the GATT 1994 more generally. Moreover, Paragraph 11.3 does not include an introductory clause such as that found in Paragraph 5.1, which refers generally to "without prejudice to China's rights to regulate trade in a manner consistent with the WTO Agreement". As noted above, in China – Publications and Audiovisual Products, the Appellate Body interpreted this introductory clause to mean that the provisions of Article XX are available, by way of incorporation, as a defence to violations of Paragraph 5.1 of China's Accession Protocol. 7.125 China argues that Paragraph 11.3 and the reference to "exceptional circumstances" in Annex 6 support China's right to invoke the defences of GATT Article XX. The complainants argue that the wording of Paragraph 11.3 is clear and does not include any reference to GATT Article XX. 7.126 The Panel notes that Paragraph 11.3 of China's Accession Protocol refers to a specific set of exceptions: those covered by Annex 6 and those covered by GATT Article VIII. Paragraph 11.3 generally prohibits the use of export duties unless those duties are applied to products expressly set out in Annex 6. Annex 6 provides maximum export duty rates for listed products and states that: "China confirmed that the tariff levels included in this Annex are maximum levels which will not be exceeded. China confirmed furthermore that it would not increase presently applied rates except under exceptional circumstances." It then contains a list of 84 products for which maximum export duty rates are stated. 7.127 In the Panel's view, the ordinary meaning of these two sentences of Annex 6 is very clear. The use of the term "maximum levels" sets a definitive ceiling in excess of which China may not impose export duties. Furthermore, the second sentence makes clear that any increase in the export duty rates applied at the time of the conclusion of China's Accession Protocol could be effected only in exceptional circumstances following consultations with affected Members. 7.128 The second exception in Paragraph 11.3 refers to "taxes and charges . . . applied in conformity with the provisions of Article VIII of the GATT 1994". In the Panel's view, this phrase makes it clear that China and the WTO Members decided that China would not maintain any export duties, taxes or charges (additional to those provided for in Annex 6) unless they were imposed consistently with Article VIII. 7.129 The Panel recalls that Article VIII allows WTO Members to impose, at the border, a variety of fees or charges provided that they are limited in amount to the approximate costs of services rendered and that they are imposed on or in connection with importation or exportation. As such, Article VIII is clearly intended to govern fees and charges imposed in particular circumstances. The Panel can find no general exception in the language of Paragraph 11.3 that would authorize China to maintain export duties other than in circumstances described in Annex 6 or in Article VIII of the GATT 1994. Notably, the language in Paragraph 11.3 expressly refers to Article VIII, but leaves out reference to other provisions of the GATT 1994, such as Article XX. In contrast to the language of Paragraph 5.1 of the Accession Protocol before the Appellate Body in China – Publications and Audiovisual Products, there is no general reference to the WTO Agreement or even to the GATT 1994. While it would have been possible to include a reference to the GATT 1994 or to Article XX, WTO Members evidently decided not to do so. The deliberate choice of language providing for exceptions in Paragraph 11.3, together with the omission of general references to the WTO Agreement or to the GATT 1994, suggest to us that the WTO Members and China did not intend to incorporate into Paragraph 11.3 the defences set out in Article XX of the GATT 1994. Context provided by other provisions of China's Working Party Report 7.130 China argues that its position that Paragraph 11.3 of its Accession Protocol allows it to invoke the justifications of Article XX is confirmed by the provisions of Paragraph 170 of its Working Party Report, which it regards as context. The complainants disagree. 7.131 Paragraph 170 falls under the Section D of China's Working Party Report, which is entitled "Internal Policies Affecting Foreign Trade in Goods", subsection (1) is entitled "Taxes and Charges Levied on Imports and Exports". Paragraph 170 provides: "[U]pon accession, China would ensure that its laws and regulations relating to all fees, charges or taxes levied on imports and exports would be in full conformity with its WTO obligations, including Articles I, III:2 and 4, and XI:1 of the GATT 1994..." 7.132 According to China, the use of the term "including" makes clear that the list of provisions cited in Paragraph 170 is not exhaustive – it refers to all goods-related obligations assumed under the WTO covered agreements, including the rights and obligations of GATT Article XX. 7.133 China submits that the language in Paragraph 5.1 of its Accession Protocol – which authorizes recourse to Article XX – "is very similar to the language in Paragraph 170". China notes the finding by the Appellate Body in China – Publications and Audiovisual Products that "[t]he reference in the introductory clause to 'consistent with the WTO Agreement' constrains the exercise of [China's] regulatory power such that China's regulatory measures must be shown to conform to WTO disciplines". For China, "the Appellate Body's unwitting phrasing shows that the relevant language in Paragraph 5.1 and Paragraph 170 is synonymous and not, as the complainants allege, fundamentally different." Therefore, China suggests, if Paragraph 5.1 includes the flexibilities of Article XX, so does Paragraph 170 of the Working Party Report. 7.134 In addition, China argues that the DSU provides contextual support for the view that, under Paragraph 170, an export duty is "in full conformity with WTO obligations" when it complies with Article XX of the GATT 1994. Pointing to the language in Paragraph 170, China notes that it is universally accepted that, under the DSU, a Member may bring its measures fully into conformity with its WTO obligations by taking action to ensure that its measures comply with GATT Article XX. Thus, a measure that complies with the obligations in Article XX must be regarded as being "in full conformity with WTO obligations", as required by Paragraph 170. 7.135 The complainants argue that the explicit language of Paragraph 11.3 of the Accession Protocol and the parallel provisions of Paragraphs 155 and 156 of China's Working Party Report that prohibit the use of export duties except in accordance with Annex 6 and Article VIII, belie this interpretation. 7.136 Before considering the provisions of China's Working Party Report invoked by the parties, the Panel considers it useful to recall first the wording of the sub-paragraphs 11.1 and 11.2 of China's Accession Protocol, which provide: "1. China shall ensure that customs fees or charges applied or administered by national or sub-national authorities shall be in conformity with the GATT 1994. 2. China shall ensure that internal taxes and charges, including value-added taxes, applied or administered by national or sub-national authorities shall be in conformity with the GATT 1994." 7.137 As noted above, China emphasizes the phrase "in full conformity with its WTO obligations" contained in Paragraph 170 of the Working Party Report. For China, this phrase, which is similar to the introductory phrase of paragraph 5.1 of China's Accession Protocol, incorporates the flexibilities of GATT Article XX. 7.138 The Panel observes that the phrase "in conformity with the GATT 1994" does not appear in Paragraph 11.3. Nor do the words "[w]ithout prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement" appear in that paragraph. However, it does appear in Paragraphs 11.1 and 11.2, quoted above. In the Panel's view, this difference in wording between the three sequential sub-paragraphs is evidence of a deliberate choice made by China and the WTO Members in setting out China's rights and obligations and it must be given effect and respected. In addition, the fact that Paragraph 11.3 does not include the language "in conformity with WTO obligations" (which appears in Paragraphs 11.1 and 11.2) can only be understood to reflect agreement at the time of China's accession that since China's export duties commitments arose exclusively from China's Accession Protocol, Article XX would not apply to such commitments. 7.139 Moreover, the Panel does not see how the language of Paragraph 5.1 of China's Accession Protocol can be equated with the language of Paragraph 11.3 of the Accession Protocol or with the wording of Paragraph 170 of China's Working Party Report. To use China's expression, the Panel is of the view that the language of Paragraph 5.1 is not "synonymous" or even similar to that of Paragraph 11.3 of the Accession Protocol or Paragraph 170 of the Working Party Report. 7.140 If China and WTO Members wanted the defences of GATT Article XX to be available to violations of China's export duty commitments, they could have said so in Paragraph 11.3 or elsewhere in China's Accession Protocol. In addition, China and the WTO Members could have agreed that China's export duty commitments were an integral part of China's commitments under the GATT 1994. For instance, WTO Members could have done this by incorporating China's export duties commitments into China's GATT 1994 Schedule. If China's export duties commitments were part of China's GATT 1994 Schedule, the general defences of Article XX of the GATT 1994 would be available to justify potential violations. However, this is not what China and WTO Members chose to do. 7.141 The Panel notes, in particular, that Paragraph 170 does not refer to China's specific obligations on export duties; it refers to "charges and taxes levied on imports and exports". Paragraph 170 is permissible and authorises China to use such charges or taxes so long as they respect Articles I, III:2 and III:4 and XI:1 of GATT 1994. Thus Paragraph 170 essentially repeats the commitments existing under certain GATT rules. The matter at issue in this dispute, and governed by Paragraph 11.3, is different; it is concerned with duties and taxes that are imposed only on exports, and that are specifically prohibited under Paragraph 11.3 of the Accession Protocol and not regulated by the GATT 1994. In the Panel's view, Paragraph 170 of the Working Party Report neither explicitly nor implicitly refers to any exceptions or GATT 1994 flexibilities in relation to the prohibition on China to use export duties as prescribed by Paragraph 11.3 of the Accession Protocol. 7.142 Paragraph 342 of China's Working Party Report takes note of commitments undertaken by China that are reproduced in Paragraph 170 of the Working Party Report. Thus the provisions of Paragraph 170 of the Working Par