Environmental Protection, China and International Trade: Greening the WTO Ban on Chinese Export Duties

Cover
Half Title
Series Page
Title Page
Copyright Page
Dedication
Table of Contents
List of illustrations
Acknowledgements
List of Abbreviations
1. Introduction
	1.1. Should WTO law allow China to use export duties to address
trade-related environmental concerns and, if so, what form should
these duties take?
	1.2. Trade-related environmental concerns and the controversies
surrounding the use of export duties to address them
		1.2.1. Local and global environmental problems exacerbated by
trade
		1.2.2. Trade-related environmental problems in China
		1.2.3. Concerns over Chinese export duties as a protectionist
measure and better alternatives
	1.3. Structure of the analysis
		1.3.1. Description of Part I: setting the scene
		1.3.2. Description of Part II: the extent to which a harsh ban on
Chinese export duties would constrain China’s capacity to
protect the environment
		1.3.3. Description of Part III: a basis under WTO law for
China’s use of export duties to address environmental
concerns
PART I: Setting the scene: The background and reception of the WTO ban on Chinese export duties
	2. Three WTO cases against Chinese export duties
		2.1. Annex 6 of China’s Protocol of Accession
		2.2. Facts of the export duties in China—Raw Materials,
China—Rare Earths, and China—Raw Materials II
		2.3. The applicability of GATT Article XX to China’s export duty
commitments
			2.3.1. Incorporation theory
			2.3.2. Inherent right
			2.3.3. A holistic approach
			2.3.4. Integration theory
			2.3.5. Article 30(3) of the VCLT
		2.4. Defences under Article XX(b) and XX(g)
	3. The reception of the ban on Chinese export duties: Concerns, solutions, and the missing piece
		3.1. Erroneous interpretation based on an overly rigid textual
analysis
		3.2. Negative implications caused by the WTO ban on Chinese export
duties
			3.2.1. Environment-related concerns
			3.2.2. Inequality-related concerns
		3.3. Proposed legal solutions and the missing piece in current
discussion
PART II: Preliminary analysis: Would a harsh prohibition on Chinese export duties constrain China’s capacity to protect the environment?
	4. A harsh ban on export duties would prevent a country from protecting the environment under certain circumstances
		4.1. Practice of WTO members to restrict exports for environmental
purposes in the period from 2009 to 2016
			4.1.1. General observations and actual examples of country
practices to use export duties to reduce local or global
pollution
			4.1.2. Preference for export duties over quantitative export
restrictions in practice
		4.2. Environmental regulatory autonomy and regulatory preference at
both the multilateral and regional levels
			4.2.1. Environmental regulatory autonomy with respect to
export restrictions
			4.2.2. Regulatory preference for export duties over quantitative
restrictions
		4.3. Conclusions
	5. Policy rationales behind Chinese export duties
		5.1. The possible rationales behind Chinese export duties
			5.1.1. The formation process of export duties in China
			5.1.2. Different missions of the relevant actors in deciding
export duties
		5.2. China’s Five-Year Plan as a trustworthy policy indicator
		5.3. The different roles of export duties in the context of Eleventh to
Thirteenth Five-Year Plans (2006–2020)
			5.3.1. Period of 2006–2015: economic development as a
dominant purpose
			5.3.2. Period of 2016–2020: a clear shift to environmental
protection
		5.4. Conclusions
	6. A neglected issue: Negative impacts on China’s capacity to fight climate change
		6.1. Measures to tackle carbon leakage
		6.2. Export duties as an alternative to import BTAs
		6.3. Chinese export duties as a credible climate policy tool
		6.4. Conclusions
PART III: Final analysis: Is there a way for China to use export duties legally in order to achieve environmental goals under WTO law?
	7. Is there a legal path to a desirable policy space for China under WTO law?
		7.1. Possible ways to alter the WTO ban through a judicial
correction
			7.1.1. Feasibility to depart from WTO jurisprudence
			7.1.2. Moves by other tribunals to deviate from precedent:
inspirations for the AB to reconsider the WTO ban on
Chinese export dutiesl
			7.1.3. Suggestions to loosen the grip of China—Raw Materials
and China—Rare Earths in light of the new facts of
Chinese export duties
		7.2. Possible ways to develop a new substantive argument
		7.3. Feasibility tests for interpretative options based on customary
international law or non-WTO treaties
			7.3.1. Possibilities and challenges to apply customary
international law or non-WTO treaties in settling WTO
disputes
			7.3.2. Options based on customary international law
			7.3.3. Options based on non-WTO treaties
		7.4. Feasibility tests for interpretative options based on WTO law
			7.4.1. A more teleological approach in light of the
environmental context in the preamble of the WTO
Agreement
			7.4.2. A new interpretation that distinguishes the China—Raw
Materials and China—Rare Earths decisions
		7.5. Possible ways to alter the WTO ban through a political
correction
		7.6. Feasibility tests for amendments, waivers, authoritative
interpretations, or Ministerial Decisions
			7.6.1. Article X:1: an amendment as a formal correction
			7.6.2. Article IX:3: a waiver as a stopgap measure
			7.6.3. Article IX:2: an authoritative interpretation as a flexible
correction
			7.6.4. Article IV:1: a more flexible alternative
		7.7. Conclusions
	8. China’s policy space for adopting ‘export duties plus’ under GATT Article XX
		8.1. Tests under Articles XX(b) and XX(g)
			8.1.1. Article XX(b): Local pollution
			8.1.2. Article XX(g): Global pollution
			8.1.3. Comparing different policy spaces under Articles XX(b)
and XX(g)
		8.2. First condition of the chapeau: ‘arbitrary or unjustifiable
discrimination between countries where the same conditions
prevail’
			8.2.1. Do ‘the same conditions’ prevail?
			8.2.2. Is such discrimination ‘arbitrary or unjustifiable’?
			8.2.3. Differential ‘export duties plus’ might be permitted for
fighting climate change
		8.3. Second condition of the chapeau: ‘disguised restriction on
international trade’
			8.3.1. Distinguishing between active discrimination and passive
discrimination
			8.3.2. The irrelevance of the hidden protectionist aim
			8.3.3. Additional limits on the use of differential ‘export duties
plus’
		8.4. A reality check on China’s environmental policies targeting
consumption
		8.5. Conclusions
	9. Implications of ‘Greening’ the WTO ban on Chinese export duties
		9.1. Lessons for addressing trade-related environmental concerns
			9.1.1. Balancing environmental and economic interests
			9.1.2. Hard cases make bad law
			9.1.3. Moderation of extreme judicial outcomes is possible, but
would be difficult
		9.2. Loosening the grip of precedent within the WTO’s legal
framework
		9.3. Preventing circumvention of WTO rules: aluminium sector as an
example
		9.4. Final remarks
Index