简评WTO上诉机构有关中国稀土出口措施案的裁决

2014年8月7日，WTO争端解决上诉机构就“中国出口稀土措施案” （China – Measures Related to the Exportation of Rare Earths, Tungsten, andMolybdenum ，DS431, DS432, DS433)公布了裁决报告。
中国政府上诉时没有就本案专家组的具体结论提出上诉，而是对专家组的一些推理及中间结论提出上诉。因为本案离前面的“原材料措施案”时间上太近，要让上诉机构来个180度大转弯几乎不可能。中国政府的目的在于澄清中国入世议定书与WTO协定关系的系统性问题，以及WTO成员维护其可用尽自然资源的权利。
中国政府在上诉中强调中国入世议定书的每一条文都是WTO协定不可分割的一部分。上诉机构认为，中国入世议定书第1.2段规定的“议定书应当成为WTO协定有机部分”的词句，只能起到联系议定书条款与现存WTO权利和义务的“桥梁”作用。这一措词本身不能解决中国入世议定书与WTO协定的关系及引用GATT第20条例外。上诉机构表示这要通过习惯条约解释规则、结合具体案情，做深入系统分析才能下结论。这也是中国政府上诉时不针对具体结论而是针对抽象法理的一个主要原因，只要上诉机构不将话说死,中国政府或许将来还有就此问题“翻身”的机会。
上诉机构还就专家组拒绝适用GATT第20条g款的推理做了分析，基本上维护了专家组的思路。中国方面的短板是对外对内的稀土管制措施不一致，这样就无法合法合理地引用GATT第20条款。本案再一次提醒，中国政府相关部门出台有关影响贸易的措施，需要做“WTO合规”的评估。目前国务院已经公布相关通知，要求相关政府部门在出台贸易有关的措施时，需做WTO合规评估，以免授人以柄。
正常情况下，中国政府应该会认真执行本案的裁决。事实上，中国政府已经着手以符合WTO规则的措施，重新洗牌稀土产业，维护正常的稀土的生产秩序，从而达到有序出口的效果。
上诉机构主要裁决结论看点如下。
第一，关于中国入世议定书与WTO协定之间的关系
With respect to therelationship between specific provisions of China's Accession Protocol, on theone hand, and the Marrakesh Agreement and the Multilateral Trade Agreementsannexed thereto, on the other hand, the Appellate Body:
a. rejected China's interpretation of Paragraph 1.2 of China's AccessionProtocol and Article XII:1 of the Marrakesh Agreement as making each specificprovision of China's Accession Protocol an integral part of the MarrakeshAgreement or one of the Multilateral Trade Agreements to which such provisionintrinsically relates;
b. found that the Panel did not err in stating that "the legaleffect of the second sentence of Paragraph 1.2" of China's AccessionProtocol is not that "the individual provisions thereof are … integralparts of Multilateral Trade Agreements annexed to the MarrakeshAgreement";
c. found it unnecessary to opine on the scope of the term "WTOAgreement" in the second sentence of Paragraph 1.2 of China's AccessionProtocol; and
d. found that questions concerning the specific relationship between anindividual provision in China's Accession Protocol and provisions of theMarrakesh Agreement and the Multilateral Trade Agreements annexed thereto,including whether exceptions under those agreements may apply to a breach ofthe Protocol provision, must be answered through a thorough analysis of therelevant provisions on the basis of the customary rules of treatyinterpretation and the circumstances of the dispute. The analysis must startwith the text of the relevant provision in China's Accession Protocol and takeinto account its context, including that provided by the Protocol itself and byrelevant provisions of the Accession Working Party Report, and by theagreements within the WTO legal framework. The analysis must also take intoaccount the overall architecture of the WTO system as a single package and anyother relevant interpretative elements, and must be applied to thecircumstances of each dispute, including the measure at issue and the nature ofthe alleged violation.
第二 ，关于GATT1994第20条g款例外的适用
With respect to ArticleXX(g) of the GATT 1994, the Appellate Body:
a. regarding the Panel's finding that China's export quotas on rareearths and tungsten are not measures "relating to" conservation and,in particular, its reasoning regarding the signals sent by those export quotasto foreign and domestic consumers:
i. found that the Panel did not interpret Article XX(g) as requiring itto limit its analysis to an examination of the design and structure of themeasures at issue and did not, either in its interpretation or in itsapplication of Article XX(g), consider itself precluded from taking account ofevidence of the effects of China's export quotas and other elements of China'sconservation regime in the marketplace; and
ii. found that the Panel did not fail to comply with its duty, underArticle 11 of the DSU, to make an objective assessment of the matter;
b. regarding the Panel's finding that China's export quotas on rareearths, tungsten, and molybdenum are not "made effective in conjunctionwith restrictions on domestic production or consumption" and, in particular,its reasoning regarding the "even-handedness" requirement:
i. found that the Panel did not interpret Article XX(g) as requiring itto limit its analysis to an examination of the design and structure of themeasures at issue and did not, either in its interpretation or in itsapplication of Article XX(g), consider itself precluded from taking account ofevidence of the effects of China's export quotas in the marketplace;
ii. found that the Panel erred, to the extent that it interpreted ArticleXX(g) as imposing a separate requirement of "even-handedness" thatmust be fulfilled in addition to the conditions expressly specified insubparagraph (g), and to the extent that it interpreted Article XX(g) asrequiring Members seeking to invoke Article XX(g) to prove that the burden ofconservation is evenly distributed, for example between foreign consumers, onthe one hand, and domestic producers or consumers, on the other hand, but alsofinds that these errors do not taint the Panel's interpretation of the phrase"made effective in conjunction with";
iii. found that, despite certain flaws in its interpretation of ArticleXX(g), the Panel did not commit legal error in its application of Article XX(g)to the export quotas, because the Panel did not, in reaching its findings,engage in an assessment of whether the burden of conservation is evenlydistributed between foreign consumers, on the one hand, and domestic producersor consumers, on the other hand; and
iv. found that the Paneldid not fail to comply with its duty, under
Article 11 of the DSU, tomake an objective assessment of the matter; and
c. taking account of the above, together with the Panel's findings, whichChina had not appealed, inter alia, that China does not impose restrictions onthe domestic production or consumption of rare earths, tungsten, andmolybdenum, and that China did not establish that its 2012 export quotas onrare earths, tungsten, and molybdenum were applied in a manner consistent withthe chapeau of Article XX:
i. upheld the Panel's finding, in paragraph 8.2.c of the US Panel Report,that China has not demonstrated that the export quotas that China applies tovarious forms of rare earths, tungsten, and molybdenum by virtue of the seriesof measures at issue are justified pursuant to subparagraph (g) of Article XXof the GATT 1994.