중국의 희토류 자원 수출규제를 둘러싼 국제통상법적 쟁점 및 전망

Abstract

In recent years, rare earths have received worldwide attentions. Chinese leaders have long emphasized the strategic importance of rare earths. As the late Chinese patriarch Deng Xiaoping famously stated, “The Middle East has oil, and China has rare earths.” China currently supplies approximately 97 percent of the world’s consumption of “rare earths,” which includes 17 elements such as cerium, neodymium, lathanum, yttrium and dysprosium, to name a few. Rare earths have become essential components in high-tech industries such as computer, cell phones, light bulbs, stainless steel and a number of green technologies like wind turbines and hybrid cars. Part II examines the recent rulings of the Dispute Settlement Body (hereinafter “DSB”) of the World Trade Organization (hereinafter “WTO”) in China-Raw Materials, which have important legal and policy implications. At issue was China’s use of tariffs and non tariff measures to restrict the export of nine raw materials(bauxite, coke, fluorspar, magnesium, manganese, silicon carbide, silicon metal, yellow phosphorus and zinc). The complainants—the United States, the European Union and Mexico—challenged China’s export restraints as violations of the provisions of the General Agreement on Tariffs and Trade 1994 (hereinafter “GATT”) and China’s Protocol of Accession (hereinafter the “Protocol”). China defended its measures by invoking GATT Article XX(g), which makes an exception for measures relating to the conservation of exhaustible natural resources, and Article XX(b), which allows measures necessary to protect human, animal or plant life or health. China's argumentation, however, was rejected by the WTO judiciary. The WTO judiciary made two key findings. First, it found that China’s export duties breached China’s obligation to eliminate export duties under paragraph 11.3 of the Protocol, and that China may not invoke GATT Article XX to justify its breach, because there is no textual link between paragraph 11.3 and the GATT provision. Second, it found that China’s export restrictions violated GATT Article XI:1, which prohibits all quantitative restrictions on imports and exports, and that the violation cannot be justified by the environmental exceptions under Article XX(b) or (g) because China failed to demonstrate that it has similarly restricted domestic consumption. Soon after the WTO rulings on China-Raw Materials, the United States, the EU and Japan filed another WTO case, challenging China’s export restrictions on rare earths, tungsten and molybdenum. Part Ⅲ overviews this case. The issues involved in the new case are almost identical with those in China-Raw Materials case, except the stakes are even higher due to the strategic importance of rare earths for high tech industries. It is expected that China will defend its restrictive measures against rare earths by invoking Article XX(b) or (g) and try to revise the irrational WTO regime on export restraints applied to newly acceding countries including China. As a conclusion, Part Ⅳ suggests the perspectives and implications of trade dispute case on China's rare earths.