A Note on the China Rare Earths Case

Abstract

The World Trade Organization’s dispute settlement mechanism has considered and decided several cases involving export restrictions. Among these cases the most important and most recent is the China Rare Earths Case. In this paper the authors analyze and evaluate the panel and Appellate Body opinions in the Rare Earths Case. Three points are especially important. First, the case brings out the fact of the disparity between import and export measures in the law of the WTO. Unlike import measures, WTO discipline with respect to export measures is haphazard, inconsistent and unfair. Second, the case highlights the issue of the relationship between WTO Accession Protocols and the WTO Agreement. The authors dispute the conclusion of the Appellate Body that the rules of the GATT, specifically the general exceptions, do not apply to certain parts of China’s Accession Protocol. Third, the case shows the limitations that apply under WTO law with respect to conservation measures of natural resources that move in international trade.