TRADE AND PROGRESS: THE CASE OF CHINA* 

Paolo Davide Faraht 

China's accession to the WTO is widely understood as an important step 
towards greater global market liberalization and integration. However, this step 
has been also perceived in an ambivalent way. On one hand, the global market 
liberalization would have never been really completed without participation of 
such a major player as China. On the other hand, many observers articulated 
concerns about China's ability to integrate into the WTO system. In order to tackle 
the issues of concern, attention was paid mainly to technical issues, which were 
seen as a precondition for China's successful integration into the WTO system. For 
this reason, topics related with market integration, such as e.g. liberalization 
requirements, as well as topics related with transparency and legal and 
administrative policies, necessary for securing of just and equitable resolution of 
commercial and trade disputes, were initially addressed. 

Still, in the light of the changing and evolving geopolitical climate, it has 
become more evident that Non-Trade Concerns (NTCs) might be another 
multifaceted topic requiring special attention. EU and US, becoming increasingly 
aware of the fact that competition of economies with different level of development 
might result not only in job losses in developed countries due to relocation of 
production, but also to general deterioration of environmental, social and health 
standards, have accentuated the importance of a global consensus on NTCs and 

• An early draft of this paper was presented and circulated at a number of conferences 
and workshops. A recent draft was presented at the Biennial Conference, organized by the 
International Economic Law Interest Group of the American Society of International Law 
(ASIL) and held at Georgetown University Law Cente r , Institute ofl nternational Economic 
Law, Washington, DC, September 30, 2016 - October 1, 2016. A special acknowledgement 
and thanks should be addressed to the participants in those conferences and wor kshops for 
providing questions and comments, in particular to Gianmaria Ajani, Daniel Bell, Angelica 
Bonfanti , Raffaele Caterina, Julien Chaisse, Thomas Christianse n, James M. Cooper, Sergi 
Corba lain, Fernando Dias Simoes, Bryan Dru zin, Ilaria Espa, Lukasz Gruszczynski, Liyu 
Han, Jean-Yves Heurtebise , Anselm W. J. Kamperman Sanders, Meredith Kolsky Lewis, 
Qiang Li, Fabio Morosini, Francesco Munari , Denise Prevost , Piercarlo Rossi, Tullio 
Scovazzi, Stefania Stafutti , Sun Shiyan, Fiona Smith , Elizabeth Trujillo, Va lentina Vadi, 
Markus Wagner, Annecoos Wiersema, Jason Yackee, Jia Yao. 

t Paolo Davide Farah, West Virginia University, John D. Rockefeller IV, School of Policy 
and Politics, Department of Public Administration and College of Law; West Virginia 
University, Energy Institute; West Virginia Univers it y, Center for Innovation in Gas 
Research and Utilization (CIGRU); West Virginia Uni versity, Institute of Water Security 
and Science (IWSS). President, Director, Principal Investigator and Senior Research Fellow 
at gLAWcal - Global Law Initiati ves for Sustainable Development. Senior Fellow at the 
IIEL - Institute of International Economic Law , Georgetown University Law Center. EU 
Commission Marie Curie Fellow (2013-2016) at Peking Univer sity, School of Government 
and at Tsinghua University, School of Law, Department of Philosophy and Department of 
Public Policy and Management. 

51 



52 COLUMBIA JOURNAL OF ASIA,V LAW [Vol. 30:51 

their inclusion into EU and US external policies concerning foreign trade and 
investment. Civil society from the developed world, in general, is afraid that 
further liberalization may endanger public policies at different levels: 
environmental protection and sustainable development, good governance, cultural 
rights, labor rights, public health, social welfare, national securitj, food security, 
access to knowledge, consumer protection, and animal welfare. 

On the other hand, coalition consisting of China and other BRICS countries 
as well as other developing countries gaining more infl,uence in the WTO and other 
international fora has been able to articulate discontent with measures adopted by 
developed countries to address NTCs. The clash between interests of det·eloped and 
developing countries reveals potential unfairness and inconsistencies of the 
international system, including the international trade system, which needs to 
undergo a deep reform to integrate the developing countries' needs. 

Many of the measures that developed countries introduce to address STCs 
were received by developing countries with suspicion, resistance, and eL·en 
hostility. Developing countries, including China, doubt the authenticity of such 
considerations and think they might actually hide protectionist purposes. 
Additionally, developing countries see these measures as an indirect form of 
western imperialism whereby they will have no choice but to comply u·ith the 
social, ethical, and cultural values of the developed states .. Vonetheless, not onl:y 
has China undergone serious reforms and adopted new regulations to address the 
issue of NTCs, but the country has even begun to play an important role in the 
international negotiations on NTCs -s uch as those on climate change, energy, 
culture, and so on. 

However, at the same time it provides an opportunity for China and other 
developing countries to defend their interests in a constructive dialogue u:ith 
developed countries and restructure the system in order to find a necessary balance 
between globalization and sustainable development or to shape it according to 
their interests. 

I. INTRODUCTORY ISSUES: RESORTING TO "NON-TRADE CONCER.'\S" TO STDf THE 
EXCESSES OF GWBALIZATION ................... ......................................................... 53 

II. CIITNA AT A CROSSROADS: FROM "RIGHT TO DEVEWPME~'T'' TO "NOK-TRADE 
CONCERNS" IN THE GWBAL CONTEXT ................................................................ 60 

Ill. NON-TRADE CONCERNS STATUS IN THE WTO MULTILATERAL SYSTE~1.. ............ 68 
1. Integrating NTCs in the WTO ................................................................... 68 
2. The Interplay among Environment, Health , and Trade, and the Prospects 

for the. New Acceding Members: China as a Case Study ......................... 70 
3. Ensuring Respect for Human Rights Matters in the Multilateral Trade 

System ............... ..... ...... ............................................................................... 89 
4. Guarant~eing Food Security at the National Level while Embracing 

International Trade Regulations ..................................................... : ......... 97 
5. Restriction of Trade Openness on Cultural Products on the Basis of 

~~!~1::ra::~~;ks····· ·· .. ····· ... ................................................................. 107 
6· g ............................................... .... ............................. 111 

-



2016) TRADE AND PROGRESS: THE CASE OF CHINA 53 

I. INTRODUCTORY ISSUES: RESORTING TO "NON-TRADE CONCERNS" 
TO STEM THE EXCESSES OF GLOBALIZATION 

From the WTO protests in Seattle in 1999 to "Occupy Wall Street" in 
2011, civil society movements have continued to express their concerns 
about the negative consequences of globalization for human, social, and 
environmental rights and justice, as well as their fear and disagreement 
toward the expansion and supremacy of world trade and of the monetary 
and commercial commodification of all interpersonal relations and 
components. 

The ongoing economic instability in several countries and regions 
throughout the world, along with the volatility of markets and job losses, 
have been leading to an increase in protests that are currently reaching 
the highest possible levels of conflict against the so-called establishment. 

Additionally , the growing political discourse and public opinion 
regarding the migration crisis and the global fight against terrorism are 
also providing momentum to some relevant segments of this variegated 
movement of protests. 

Majority votes favoring Brexit and other political turmoil happening 
around European countries, in the United States, and in different parts 
of the world are just some of the most critical examples on how the 
existing systems are failing. Specifically, globa l governance and law with 
borderless globalization are to blame for the inability to find appropriate 
solutions to face the challenges of a constantly changing society . 
Unfortunately, this inability creates the risk that an increasing part of 
the population, who are unable to benefit from such globalization, will be 
left behind 

For example, more and more political leaders are trying to use this 
discontent among the society for obtaining an easy consensus, without 
truly having a real program to improve the life of the people. More 
importantly, without endorsing the intrinsic dangers, a strong shift back 
towards nationalism might come to fruition in the long-term as a result. 

The related fears of the people toward the risks of a world without 
barriers are very real and concrete. Additionally, the proposed solut ions 
to address these problems are certainly influenced by the negative visions 
on globalization and liberalism, which neglect to take into account the 
positive effects of the free trade and liberalization of the markets. 

From the beginning of the Industrial Revolution to recent times, the 
success of the capitalist mode of production and its positive impact are 
visible in its results and achievements in terms of demographic, 
economic, and technological development. Between 1810 and 2010, the 
data shows that the total income per capita has multiplied by nine, the 
world population by six, and the pace of technological innovation and 
investments grew extensively. 

However , while considering the legitimacy and efficacy of the 
production of goods industrially and the commercial distribution of 
wealth at the time of global expansion, one needs to bear two important 



54 COLUMBIA JOURNAL OF AsIAN LAW [Vol. 30:51 

caveats in mind. The first caveat is that the global development of the 
industrial mode of production of goods and its related international value 
chains have caused a perturbation in the balance that regulates the 
interaction between man, the Earth and the environment: climate 
change . 1 Increase in global average air temperature, increase in sea 
levels, widespread melting of snow and ice , increase in the cyclonic 
activity, increase in precipitation, reduction of oceans' capacity to absorb 
heat and carbon dioxide, depletion of fisheries, soil erosion, and pollution 
are some of the flip sides of the global triumph of the Industrial 
Revolution . 

As stated in the report Limits to Growth , issued by the Club of Rome 
in 1972 , 2 and as rephrased more recently in the 2005 Millennium 
Ecosystem Assessment, "[h]uman activity is putting such strain on the 
natural functions of Earth that the ability of the planet 's ecosystems to 
sustain future generations can no longer be taken for granted." 3 Since the 
current mode of development is considered as not being sustamable, if no 
changes occur, this mode of development will soon result in its own end. 
In other words, human expansion and development have exhausted the 
Earth's production, absorption, and recycling capacity. The second caveat 
is that the inequalities between the rich and poor countries have 
increased paradoxically due to global development of the commercial 
wealth distribution. This process has taken place since 1820 and 
throughout the 20th century with the exception of the "golden age of 
capitalism" from 1950-1973 with economies from all over the world who 
prospered during such period. 4 

Therefore, the idea of limiting the excesses of globalization with an 
improved and well-balanced system of global governance while 
monitoring and bettering the international institutions that create 
them-such as the International Monetary Fund (IMF) or the World 
T~ade Organization (WTO)-may be , to a certain extent, justified and it 
will be ~eve~oped further in the rest of this article along with a reasoning 
on multmat10nal companies and other non-State actors. 

As the Former Director-General of the WTO Pascal Lamy once stated: 

1 Gabrielle Marceau & Mireille C I · · · C ·d· . R ossy, nstitution.al Challenges to Enhance Policy ;:~e~~~~;: 0;th:~
0

:~~ Rte_;. Could Be Utilized _to M eet Climate Objectiles? 371-9-1 
Role of the WTO in the Cli ra_ e C~rum 2007, International Trade on a Warmmg Globe: The 
Tremolada Global Gove mate & tnge ~ebate, 2008). See also Paolo D. Farah & Riccardo 
At the Cr~ssroads of ;;~nee& Intan.gi?le C':'ltural Heritag e in. the Information Society: 

6 nnovation in THE HAlNDBOOK o G S ·cE TECHNOLOGY, AND INNOVATION (D . l '. . F LOBAL CJE:-; • 
2 DONELLA H. MEADOWS ET :1e e Arch1bugi & Andrea Fillipetti eds., 2015). 

ROME'S PROJECT ON THE PREDICAM~~t:Ts TO GROWTH: A REPORT FOR THE CLUB OF 
s MILLENNIUM ECOSYSTEM AsSE MANKrNn 1-34 (1972). 

MEANS: NATURAL AssETS & HUMAN W SSMENT BOARD STATEME.l\'T, LMXG BEY0:).'1) Oll! 
(2005) . ELL BEING - M1LLE~ID1 ECOSYSTE:\t ASsESS~tE:)."T 3 

• Andres Solimano, The Evolution of Wo ld I . 
Globalization, ECONOMIC COMMISSION FOR~ ncome Inequality: Assessing the Impact of 
7-37 (Dec. 2001), http: //www.ce al / :N ~RWA AND THE CARIBBEAX (ECLAC), 
inequality-assessing-impact-globali zaiio~~rg e publications /5343-evo lution-world-income· 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 55 

"For better and for worse, globalization of the issues increases, on a daily 
basis, the need to organize democratic, global forms of governance that 
are both legitimate and efficient. In other words: democratic."5 

In fact, for many years, the General Agreement on Tariffs and Trade 
(GATT) and the WTO have been highly criticized and portrayed as the 
least transparent and democratic of all international organizations . 
Indeed, most of the meetings and debates are held in camera, and 
agreements are reached at the intergovernmental level without any 
public participation.6 The lack of civil society participation in the ongoing 
negotiation rounds at the WTO affects the rights of all parties to both 
information and participation, as they were made clear by the 1998 
Aarhus Convention (Access to Justice), 7 Article 21 of the Universal 
Declaration of Human Rights, 8 as well as Principle 10 of the Rio 
Declaration on Environment and Development. 9 

Nevertheless, the WTO has gradually begun to open up to civil 
society, both through the participation of Non-Governmental 
Organizations (NGOs) in the plenary sessions of the most important 
ministerial conferences, as during the Singapore Ministerial Conference 
in 1996, the Geneva Ministerial Conference, and the Bali Ministerial 
Conference in 2013, 10 and through the establishment of a contact group 
dedicated to NGOs within the WTO secretariat. Additionally, the WTO 
website provides access to a wide range of highly detailed information on 
trade issues and the relevant committees. Moreover, the WTO's Appellate 
Body (AB) has authorized the submission of amicus curiae briefs as well 
as the opening of public hearings. 11 Thus, as trade institutions expand 
their competence, the role of civil society in the institutions that govern 
international trade is becoming increasingly substantial. 12 Considering 

& PASCAL LAMY, LA DEMOCRATIE-MONDE - POUR UNE AUTRE GOUVERNANCE GLOBALE 
20 (2004). 

6 For a general overview of the WTO rules, see PETER VAN DEN BOSSCHE, THE LAW AND 
POLICY OF THE WORLD TRADE 0RGANlZATION: TEXT, CASES AND MATERIALS 917 (2d ed. 
2008); M!TSUO MATSUSHITA, THOMASJ. SCHOENBAUM & PETROS C. MAVROIDIS, THE WORLD 
TRADE ORGANIZATION: LAW, PRACTICE AND POLICY 989 (2003); DAVID LUFF, LE DROIT DE 
L'ORGANISATION MONDIALE DU COMMERCE. ANALYSE CRITIQUE 771 (Emile Bruylant 2004); 
PAOLO PICONE & ALDO LIGUSTRO, DIRITTO DELL'ORGANIZZAZIONE MONDIALE DEL 
COMMERCIO 505 (Diritto Internazionale e Ordine Mondiale 2002). 

1 United Nations Economic Commission for Europe, Convention on Access to 
Information, Public Participation in Decision-Making and Access to Justice in 
Environmental Matters, June 25, 1998, 2161 U.N.T.S. 447; 38 ILM 517 (1999). 

s Universal Declaration of Human Rights, G.A Res. 217 (IID A, U.N Doc. 
A/RES/217(III) (Dec. 10, 1948). 

o United Nations Conference on Environment and Development, Rio de Janiero, Braz. , 
June. 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. 
A/CONF.151/26/Rev.l (Vol. I) , Annex I (Aug. 12, 1992). 

10 DIANE A. DESIERTO, PUBLIC POLICY IN INTERNATIONAL ECONOMIC LAW: THE ICESR 
IN TRADE, FINANCE, AND INVESTMENT 235 (2015). 

11 Appellate Body Report, United States - Import Prohibition of Certain Shrimp and 
Shrimp Products, WT/DS58/AB/R (Oct. 12, 1998); Gabrielle Marceau & Matthew Stilwell , 
Practical Suggestions for the Administration of Amicus Curiae Briefs by WTO Adjudicating 
Bodies, 4 J. INT'L ECON. L. 155, 155 (2001). 

12 Heidi K. Ullrich, Expanding the Trade Debate: The Role of Information in WTO and 



56 COLUMBIA JOURNAL OF ASIAN LAIi' [Vol. 30:51 

the growing transparency within the WTO, but ~so the stand -still of 
most of the multilateral negotiations at the WTO, 1t has to be noted that 
recently all this anger, disagreement and protests have been addressed 
toward the Regional Trade Agreements (RTAs) such as t~e ~IP a_n~ the 
TPP. The RTAs in general are ind eed receiving these sunilar critics of 
lack of transparency and of risks of affecting some of the most important 
NTCs. 

Hence , the right approach is not to oppose the global sovereignty of 
certain international organizations as a whole, but rather to proactively 
and constructively propose concrete reforms, changes or new 
arrangements 13 to provide such institutions with more democratic 
legitimacy. In addition to the increa sing democratic transparency of their 
decisions , it is mostly the outer frame of analysis which should be 
amended. 14 

Democratic legitimacy and open dialogue, global social justice and 
sustainable development based on human rights principles and careful 
consideration to NTCs when negotiations are ongoing and new 
liberalization policies are proposed , should be used as the regulatory 
framework to structure global expansion of economic welfare as well as 
WTO rules.15 Yet, the difficulty and limit of this approach lies in the fact 
that it affirms both, that human rights s hould guide the process of global 
legal integration and that the WTO should deal with such process of 
integration of those important societal principles within the trade 
system. 16 Unfortunately, this is not always possible within international 
organizations and through binding international agreements which 
require the necessary consensus of all the countries and the often 
diverging visions on what are human rights and how their protection 
should be implemented. Suggesting that WTO law guarantees respect for 
fundamental human rights implies a refusal to evaluate the practices of 

Civil Society Interaction, Inform ation and Communication Technologies and Human Rights 
Advocacy: the Case of Amnesty Int ernational, in CIVIL SOCIETY IN THE l~"FOR.\tATIO:S AGE 
19, 19-36 (Peter Hajnal ed., 2002) ; E lisab eth Tuerk, The Role of NGOs on Intemational 
Governance NGOs and Developing Country WTO Members: Is there Potential for Alliance?, 
in INTERNATIONAL ECONOMIC GOVERNANCE AND NON-ECONOMIC CONCERNS 169 169-210 
(Griller Stefan ed. , 2003). ' 

13 THOMAS D. ZWEIFEL, INTERNATIONAL ORGANIZATIOKS AND DE~10CRACY: 
ACCOUNTABILITY, POLITICS, AND POWER 14 (2006) . 

14 Meinhard Hilf & Goetz J. Goettsche, The Relation of Economic and !\"on-Economic 
Principles in International Law, in INTERNATIONAL ECONOl\iIC GOVERNANCE AND NON· 
EC~NOMIC CONCER~S, .~upra no!e 12, at 5; ROBERT HOWSE, How to Begin to Think about 
the 'Democratic Deficit at the "TO , in INTERNATIONAL ECONOMIC GOVEIL'IIANCE AND NON-
ECONOMIC CONCERNS, supra note 12, at 79. 

15 ~rnst-Ulrich P~ters~ann, Time for a United Nations 'Global Compact' for 
Integrating Huma_n Rights into the Law of Worldwide Organizations: Lessons from 
European Int egration, 13 EUR. J. INT'LL. 621, 621-50 (2002). See also Gabrielle Marceau & 
Aline Doussin , Le Droit du Commerce Int ernationale et les Droits Foridamentaux et 
Considerations S~ciales, 27 L'OBSERVATEUR DES NATIONS UNIES. 241, 241-4 7 (2010). 

. 
10 Er~st-:uir1ch P ~ters mann , From "Negative" to "Positive" Integration in the WTO: 

Time for 'Mainstreaming Human Ri ghts' into WTO Law? 37 COM.\ 10N MKT L REV 1363 
1363-82 (2000). ' ' . . . ' 

-



2016] TRADE AND PROGRESS: THE CASE OF CHI NA 57 

organizations such as the WTO itself and the IMF, 17 but also means that 
within those organizations , Member States would hav:e agreed on a 
common core of values to be respected. 

Indeed, since free-trade and liberalization should be the final outcome 
and the main guiding principles , WTO rules not only prevent Members 
from discriminating against other Members in general, but also severely 
restrain their ability to adopt trade measures against another Member 
whose practices do not respect human rights. In fact, the ability of the 
Member States to advance human rights is subject to the condition that 
it must be done without violating the principles of Most Favored Nation 
(MFN) and National Treatment (NT). Likewise, accession to the WTO is 
not subject to any criterion related to respect for human rights , and its 
rules require that each Member-following accession to the 
Organization-can enjoy the same commercial benefits as the others, 
thus preventing Member States from discriminating based on the 
protection of human rights. 18 Even though the WTO does not have any 
human rights criteria for membership, between 2003 and 2007 , when 
countries sought to accede to the WTO, the Member countries focused on 
how the applicant nations protected the rights of citizens as well as non-
citizens.19 Nevertheless, Article XX (f) exception allows Members to adopt 
measures that restrict trade in goods manufactured by prisoners. 
Another interesting example is the waiver granted to all countries that 
are Parties to the Kimberley Process, 20 which is designed to certify the 
origin of rough diamonds 21 from sources that are free of conflict fueled by 
diamond production (so-called blood diamonds). 22 Some WTO provisions 
might be interpreted so as to give Members the opportunity to pursue 
human rights objectives. The general exceptions set out in GATT Article 
XX could provide a viable framework for action. Article XX includes 

17 Philip Alston, Resisting the Merger and Acquisition of Human Rights by Trade Law: 
A Reply to Petersmann, 13 EUR. J. INT'L L. 815, 815-84 (2002). 

1s There is, of course, a possibility to opt out of commercial relations with a new 
Member (so-called cause of non-compliance) , but it has never been used by any Member. 

1s Susan Ariel Aaronson, Seeping in Slowly: How Human Rights Concerns are 
Penetrating the WTO, 6 WORLD TRADE REV. 1, 12 (2007), https://usitc.gov/research_ 
and_analysis/economics_seminars/2008/Aaronson.pdf. 

20 The Parti es of the Kimberley Process are listed at the following address: 
http ://www.k imberleyprocess.com /s ite /participants.htm1 (last updated Aug. 21, 2016). They 
include Angola, Armenia, Australia, Bangladesh, Belarus, Botswana, Brazil, Canada, 
Central African Rep., China, Cote d'Ivoire , Croatia, Dem. Rep. of Congo, European 
Community, Ghana, Guinea, Guyana, India, Indonesia, Israel, Japan , Laos, Lebanon, 
Lesotho, Malaysia, Mauritius, Namibia, Norway, New Zealand, Russia, Separate customs 
territory of Taiwan, Sierra Leone, Singapore, S. Africa, S. Korea, Sri Lanka , Switzerland, 
Tanzania, Thailand, Togo, Ukraine, U.S., Venezuela, Vietnam, and Zimbabwe. 

21 Rough Diamonds are diamonds that are unworked or simply sawn, cleaved, or bruted 
and fall under the Relevant Harmonized Commodity Description and Coding System 
7102.10 , 7102.21 an d 7102.31. Kimberley Process Certification Scheme § 1 (Aug. 2003). 
Margo Kaplan, Note, Carats and Sticks: Pursuing War and Peace through the Diamond 
Trade, 35 N.Y.U. J. INT'L L. & POL. 559, 587 (2003). 

2'2 Daniel Feldman, Conflict Diamonds , International Trade Regulation, and the Nature 
of Law, 24 U. PA. J . INT'L ECON. L. 835, 840 (2003). 



58 COLUMBIA JOURNAL OF ASJAJ\' LAW [\'ol. 30;51 

language allowing nations to restrict trade when necessary to protect life'. 
protect publi c morals, secure compliance, and conserv~ natural resources, 
at the same time also allowing Member States to restrict trade for reasons 
of national security. This was noted for human rights v10lation:. caused 
by South Africa , and the UN Security Council authorized the trade 
restrictions. 23 

On the other hand, t he trend of signing RTAs where States often 
choose carefully with which other States they wish to engage m such a 
partnership24 can give more importance to the influence of human rights 
in trade policy decisions and have consequences in terms of legal 
empowerment. But as expressed before, RTAs are also facing very . trong 
critics for lacking transparency and potentially affecting . TCs. 

This debate also looks at the idea of resituating the notion of Non-
Trade Concerns (NTCs). The integration of TCs within the WTO 
decision-making proc ess and within the RT As should include a regulatory 
reference on how to protect and raise concerns about certain non-
economic values and fundamental rights within the economic criteria 
that have defined globalization so far. 25 From this perspective, it is of 
relevant importanc e to stress that the current stand-by or the eventual 
success of the Doha Round depends also on the steps towards how many 
issues connected to NTCs will be negotiated. The most recent negotiations 
have experienced the strongest disagreement of the developing countries 
and least-developing countries, and the ability, real intention, and 
possibility of bringing all the different countries characterized by 
diverging need s and level of development, in joint conversations and 
negotiations on NTCs, r elevant conditionality and requirements will 
decide the outcome of future negotiations. 

The right to deve lopm ent and other associated rights, such as the 
right to food, shelter, water, and so on, 26 are all, to some extent, directly 
affected by internati onal trade. To elucidate, international trade law, 
both within and outside the WTO, determines how global trade evolves 
and limits the ways in which trade policy can be used to encourage 

21 Aaro nson, supra note 19, at 10. 
2

• This is, of course, subject to negotiation and depends on negotiating power of the different partie s involved. 
25 

James R. Simpson & Thomas J. Schoenbaum, Non-Trade Concerns in WTO Trade 
Negotiatwns: Legal and Legitimate Reasons for Revising the "Box" System?, 2 I!l.'T'LJ. AG RIC. 
RESOURCES, GOVERNANCE & ECOLOGY 399, 399-410 (2003). 

26 
LUDTVJNE TAMIOTTI ET AL., TRADE AND CLIMATE CHANGE. A REPORT BY THE UNITED 

NATIONS ENVJRO:-.."MENT PROGRAMME AND THE WORLD TRADE 0RGA.\."JZATION 1-124 (\\"TO 
Publications: World Trade Organization 2009); PATRICIA BIRNIE, ALAN BOYLE & CATHERINE 
RE~G~ELL, INTERNATIONAL_ LAW AND THE E!s"VJRONMENT 43-103 (3d ed. 2009); Christine 
Bremmg-Kaufmann, The Right to Food and Trade in Agriculture, in HL~!A.'-RIGHTS AXD 
INTERNATIONAL TRADE 34 1, 381 (Thomas Cottier, Joost Pauwelyn & Elisabeth Burgi 
Bonanomi eds. 2005); Rebecca Bates, The Road to the Well: An Emluation of the Customary 
Right to_ Water,. 19 REV. EUR. CMTY: & INT'L ENVTL. L. 282, 293 (2010); Joanne Scott, 
Integrating Environmental Concerns into International Economic Lau:, in Ill."TER.'-ATIO:-.AL 
ECONOMIC GOVERNANCE AND NON-ECONOMIC CONCERNS, supra note 12 at 371 · Upendra 
Baxi, The Huma n R ight to Water: Policies and Rights, in WATER AND T~ LAW~ IN l1''DIA 
149, 166 (Ramaswamy R. Iyer ed., 2009). 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 69 

domestic policies, which, in developing countries, allow greater legal 
empowerment. Permitting more substantial participation of developing 
countries within the WTO and promoting the opening up of trade and 
custom barriers, such as for agricultural products, might have an 
extremely important impact on the issues connected to NTCs. While 
furthering this assertion, rights of disadvantaged farmers in developing 
countries could be positively, though indirectly, affected. This is precisely 
why some experts call for the expansion of the concept of NT Cs to the 
dissemination and production of agricultural products, qualifying them 
as global public goods.21 

With regard to NTCs, the main issue is that ~eveloping countries do 
not have the same concerns as developed ones. When a country still faces 
problems related to basic healthcare and hygiene, fewer resources remain 
to deal with issues like animal welfare and food safety. Developing 
countries will try to achieve a high level of protection for NTCs, primarily 
in those areas where the same level of protection is granted by 
industrialized countries whose market they want to access. The key 
challenge is how to satisfy the right of developed nations to grant social 
values the degree of protection they consider appropriate, while 
minimizing the negative effects in terms of market distortion for their 
trading partners. This is exactly where the WTO can prove itself very 
useful. For example, the regulation of investments and protection of 
intellectual property rights on product and production processes as well 
as issues related to patents derived from traditional knowledge or 
Chinese traditional medicine, fall within both the international legal 
system (Agreement on Trade Related Aspects of Intellectual Property 
Rights or TRIPs 28 and Patent Cooperation Treaty or PCT) 29 and the 
European one-European Patent Convention.so 

The following section examines the particularities of China at a 
crossroads between the "Right to Development" and "Non-Trade 
Concerns," given that China still seeks to grow its economy and expand 
industry to bring millions of more people out of poverty. Simultaneously, 
it plays an essential role (together with other BRICS countries) in 
creating a model to "develop" sustainably, with a view towards tackling 
climate change, avoiding the increasing environmental risks and 
damages, and balancing the attractions of foreign investments with labor 
rights , human rights, and public health. 

The subsequent section titled "Non-Trade Concerns Status in the 

21 Simpson & Schoenbaum , supra note 25, at 399-410. 
2a Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 

1869 U.N.T.S. 299, 33 ILM 1197 (1994). 
29 Patent Cooperation Treaty , June 19, 1970, TIAS 8733, 28 UST 7645; 9 I.L.M. 978 

(1970). . 
Convention on the Grant of European Patents (European Patent Convention), Oct. 

5, 1973, 1065 U.N.T.S. 199 (as revised by the Act revising Article 63 EPC of Dec. 17, 1991 
and the Act revising the EPC of Nov. 29, 2000), https://www.epo.org/law-practice/legal-
texts/html/epc/2013/e/ma l .html. 



60 COLUMBIA JOURNAL OF A SIAN LAW [Vol. 30:51 

WTO Multilateral System," develops a non-exhaustive overview and 
explore s th e integrati on ofN TCs in the WTO. In particular, the interplay 
between environment and trad e is examined, 31 as are the prospects for 
the new acceding Members (taking China as a case study and its 
accession to the WTO in 2001). Also examined are the changes in the 
attitude of the WTO DSB towards ranking public health issues over 
trade· the relations bet ween food security and international trade 
regul~tion s; th e diffi cult balance of the right to access essential me~cmes 
and the protection of their IPRs ; the respect of other human rights in the 
multilateral trading system; and the relations betw een cultural products 
and public moral s. 

IL CIIlNA AT A CROSSROADS: FROM "RIGHT TO DE\ 'ELOP~lEN'T., TO 
"NON- T RADE CONCERNS" IN THE GLOBAL CONTEXT 

In re cent years, the world has been confronted with a critical 
depletion of natural resources , with increasing risks and disruption to the 
environment, overpopulation as a major environmental issue, extreme ly 
deteriorating public health , economic depression at the global level, a 
massive increase in commodities pricing (even the most essential ones in 
view of gu aranteeing the right to food), global famine in poor countries as 
well as the reappearan ce of hun ger in growing areas of the developed 
world, international tensions, a nd , the eventual adoption or re-adoption 
of martial law. 

In this evolving and consta ntl y ch anging context, China successfully 
developed over the last 30 years without completely overcommg its 
internal dispariti es. The tension between the national regime and 
international influences ha s never been completely resolved .32 On the one 
hand , the Chinese Government keeps encouraging vertical integration of 
the production system within its borders in order to build an independent 
industrial system. On th e other , China has become a global economic 
player , contributing mas sively to economic globalization: not only has it 
received an enormou s amount of foreign direct investment , but it also 
actively engages in global trad e and capital exports. 

3 1 One of the examples that will be examined in the following analysis 1s the US-
Shrimp case. If we can ju stify restricting importation of shrimp to comply with the societal 
objective to protec_t turtles, we certai nly can bend economic laws to protect NTCs and related 
fundamental, social and environmenta l rights . See GABRIELLE 11ARCEAlI Trade and the 
Environment: The WTO's Efforts to Balance Economic and Sustainable O!l'elopment, in 
ECONOMIE ENVIRONNEMENT: ETHIQUE, DE LA RESPONSABILITE SOCIALE ET SOCIETALE 225 
225_-35 (C. Bovet, H. Peter & ~-?rindade Trigo eds. 2009). See also Appellate Body Report: 
United States - Imp ort Prohibition of Certain Shrimp and Shrimp Products, \\'TO Doc. 
WTf?S58/AB/R <<::>ct. 12, 1998); Panel Report, United States - Impor t Prohibition of Certain 
Shrimp an~ Shrimp Products, WTO Doc. WT/DS58/RW (June 15, 2001); Appellate Bodv 
Report, United States - Import Prohibition of Certa;n Sh · d Sh · Prod ,· . • nmpan nmp ucs 
:;~~).r se to Article 21.5 of The DSU by Malaysia, \VTO Doc. WTillS58/AB/RW (Oct. 22, 

12 GIM''MARIA A.JA.'11, Legal Chanae and Eco · p, ,. · 
o nomic er,ormance· 4.n Assessment in AsIA:" CONS~ITUTI01:1ALl~M ~N. TRANSITION: A C01',1PARATIVE PERSP~~J\r; 28l 28l-305 

(Tama Gropp1, Valeria P1ergigh & Angelo Rinello eds., 2008). · 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 61 

It is arguable whether China's accession to and integration in the 
WTO had beneficial consequences for world trade as a whole or has only 
negatively affected its trading partners while at the same time stressed 
the limits of the WTO and the trading system in an irreparable way. 
Probably, neither of these two options is totally correct. China's accession 
to the WTO has been a milestone3 3 for the country itself, for world trade, 
and for all the other emerging economies and developing countries that 
have acquired more negotiating power over the years, and has established 
new geopolitical relations through the BRICS influence in the 
international trade and non-trade arenas . 

China achieved accession to the WTO following a nearly 15-year 
negotiation process which had many legal, political, and social 
implications for all parties. 34 China's accession surely presented the 
world trading system with opportunities, but also posed the challenge of 
integrating an economy with strong structural, behavioral and cultural 
constraints. 35 Many of the effects of this process are now evident 
throughout the world after nearly fifteen supplementary years, but 
China's role in world trade has merely added complexity to the 
preexisting puzzle created by globalization. 

At the time of its accession, the other WTO Members endorsed and 
acknowledged that China's participation was necessary to further expand 
the global market liberalization and integration, which are the 
fundamental principles of the WTO . It has been clearly understood that, 
even though the challenges and implications were many, without China, 
the WTO would have been only a partial worldwide trade organization. 36 

But, in the years that followed China's accession to the WTO, other 
factors revealed that the rules set by Western countries to regulate their 
interests could not be simply applied to non -Western countries without 
producing friction. Within the WTO system, the best example of these 
evident disharmonies is the complete standstill of the Doha Round. 

The road to the signature of China's Accession Protocol was long, 37 

"" Robert Herzstein, Is China Ready to WTO Rigors?, WALL ST. J. (Nov. 16, 1999), 
http: //www.wsj.com/articles/SB94270287227508 l 590. 

34 See generally Karen Halverson, China's WTO Accession: Economic, Legal, and 
Political Implicati ons, 27 B.C. INT'L & COMP. L. REV. 319, 319-23 (2004); Alan Alexandroff, 
Concluding China's Accession to the WTO: The U.S. Congress and Permanent Most Favored 
Nation Status for China, 3 UCLA J. INT'L L. & FOREIGN AFF. III 23, 25 (1998-1999). 

:i.; See JOHN H. JACKSON, The Institutional Ramifications of China's Accession to the 
WTO, in CHINA IN THE WORLD TRADING SYSTEM: DEFINING THE PRII\CIPLES OF 
ENGAGEMENT (Frederick M. Abbott ed., 1998). 

36 See Press Release, WTO, WTO Ministerial Conference Approves China's Accession 
(Nov. 10, 2001) , http://www.wto.org/ english/news_e/pres0l_e/pr252_e.htm; James 
Feinerman, China's Quest to Enter the GA'ITIWTO, 90 AM. Soc'YINT'LL. PROCEDURE. 401, 
402 (1996). See also MARIA WEBER, IL MIRACOLO CINESE: PERCHE BISOGNA PRENDERE LA 
CINA SUL SERIO 83-84 (2003); Leila Choukroune, Chine et OMC: l'Etat de Droit par 
L'Ouverture au Commerce International?, 6 REVUE DE DROIT DES AFFAIRES 
lNTERNATIONALES 655, 655 (2002). 

:r, Raj Bhala, Enter the Dragon: An Essay on China's WTO Accession Saga, 15 AM. U. 
INT'LL. REV. 1469, 1471 (1999-2000). 



62 COLUMBIA J OURNAL OF ASIAN LAil' [Vol. 30:51 

but these difficulties pale in comparison to those that have not yet been 
tackled in terms of achieving real implementation of its provisions 
throughout the People 's Republic of China (PRC) 38 and those still need to 
be solved at the global level to integrate China and other countries that 
have acceded to the WTO in the la st 10 years. Globalization and 
expansion of trade have created an interconnected world with the result 
that some countries ha ve ben efited from an increase in their economic 
development while others hav e seen a gradual reduction in their growth 
rates and employability of their citizens. These challenges are even more 
relevant considering the impact of the economic crisis in 2008. Following 
the crisis, the system had to integra te the increasing number of petitions 
from developing countries and emerging economies in many different 
areas and, on the other side, to account for the requests from civil society 
in the developed world to protect non- economic values that were under 
stress due to the incr eas ing growth of many poor and developing 
countries and the contraction in growth (and its social impact) of the 
industrialized world . Somehow , globalizat ion is finally bringmg more 
prosperity , wealth, and opportunities to the developing world with the 
need to duly monitor the actions of multin ationa l companies located and 
operating in those countries to limit their incredible power and influence. 
At the same time , the developed world is n ot growing as before because 
lower-cost products from de ve loping countries have taken the market 
share previousl y belonging to the products from the industrialized 
countries. 

Prior to China's accession to the WTO and the subsequent debates on 
implementation, a great number of an alysts have argued that not only 
will China's integration be long and di.fficult, 39 but it could also damage 
the Organization and its Members . In view of overcoming these 
challenges , some experts decided to focus on the analysis of the market 
access concessions, tariff reduction s, or lib eralization requirements for 
China's integration in the world trading system. 40 A second group of 
scholars , res_earchers, and analysts placed more emphasis on 
transparency issues , such as leg al and administrative policies that China 
must establish to ensure equitab le and efficie nt resolution or'co mmercial 

38 See Paolo Davide Farah, Five Years of China's WTO M, b h" E,. d "S 
n • b Ch. , C em ers 1p. v an '-' ,.-erspectwes a out mas ompliance with Transpar e C · d h . . . . ncy omm1tments an t e 
Transitional Review Mechanism, 33 LEGAL ISSUES OF ECONO~·fIC IN 

. a ITEGRATION 263, 263-
304 (2006); Donald C. Clarke, China's Legal System a d th "'TO Pro r. 
C l . w n e " : spects ,or 

om~iance, 2 ~H. U. GLOBAL STUD. L. REV. 97, 97 (20 03). 
Paolo David e Farah & Elena Cima China's na t· · · · . . . • •· r 1c1pation in the World "'rode Or0 anization in EL COMERCIO C C ~, o • ON HlNA 0PORTUNIDADES E 

INCERTIDUMBRES JURIDICAS 83, 87 (Aurelio Lop~z-Tarruell , MPRESARIALES, 
generally China and the WTO: Comp liance and Monitoring· H a . Ma;/~nez ed. 20 l 0). ~ee 
Econoniic and Security Review Commission 108th Con (F :;-nng e ore the U.S. - China 

1° Farah, supra note 38 at 263 -304· us GOV'T Ac~ e ruary 5 • 2oo4). 
TO CONGRESSIONAL COMMITTEES; u.s'..ci:u~A TRADE ~~ABILITY OFF. (GAO), REPORT 
GOVERNMENT EFFORTS TO E~SURE CHINA'S co'MPL PORTUNITIES TO L'\iPRO\'E u.s 
ORGANIZATION COMMITMENTS, GA0-05-53, 6 (200 4) h ttp)~CE WITH WO~D TRADE 
.pdf. ' · www.gao.gov/new.1tems/d0553 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 63 

and trade disputes. 41 However, the issue of the consequences and 
influence of China's WTO accession on NTCs has rarely been addressed, 42 

which is now becoming even more evident in the geopolitical context, 
considering the impact that China along with the other BRICS and 
developing countries has, not only at the WTO, but a lso in other 
international fora. 

The intersection of the NTCs and China's participation in the WTO 
is manifested in the social and environmental consequences of the 
competition between economies with different levels of development as 
well as different levels of social protection and implementation of health 
and environmental standards. Still, the relocation of production seems to 
have been the only answer to the increasing economic pressure exercised 
on European and American companies by "low-cost" prod ucers. 
Unfortunately, such re location has resulted in job losses for European 
and American citizens and could have a corrosiv~ influence on 
fundamental social values in Europe and the United States as well as in 
the host countries. Both public opinion and political leaders, as well as 
policy makers, fear that international trade-and, in particular, its 
further liberalization - may endanger public policies at different levels: 
environmental protection and sustainable development, good 
governance, cultural rights, labor rights, public hea lth, social welfare, 
national security, food security, access to knowledge, interests of 
consumers, and animal welfare. 43 A consensus has emerged on the 
necessity to integrate NTCs-which reflect different social aspirations 
and fears-into the external policy of the European Union and the United 
States to adopt measures related to international trade and fore ign 
investment. Moreover, the European Union and the United States 
strongly demand the possibility to act in all international areas to defend 
and preserve these values by giving them a high degree of protection. 

Nevertheless, many of the measures that developed countries 

41 Id. at 6; Halverson, supra note 34, at 346; Jiangyu Wang, The Rule of Law in China: 
A Realistic View of the Jurisprudence, the Impact of the WTO, and the Prospects for Future 
Developnient, SINGAPORE J. LEGAL STUD. 374, 374-89 (2004); Alan Alexandroff, The WTO's 
China Problem, 21 POLICY OPTIONS. 64, 64 (2000). 

42 Paolo Davide Farah, Le Role de la Chine et de l'OMC dans le Developpement 
des "Considerations Autres que Commerciales ,1 pour Reguler le Commerce Mondial de 
Fai;on Plus Juste et Durable (The Role of China and of the WTO for the Development of the 
Non-Trade Concerns to Regulate the World Trade in a More Just and Durable Way), in 
ECONOMIE DE MARCHE, DROITS ET LIBERTES ET V ALEURS COMMUNES EN EUROPE ET EN 
AsIE (Market Economy, Rights and Freedoms, and Common Values in Europe and Asia) 67, 
67-80 (Laurence Potvin-Solis & Hiromi Ueda eds., Publication of the Jean Monnet Chair of 
the University of Lorraine Metz, France, 2012); Basu K. Parikshit & Bandara M. W. Y., 
Introduction: Socio-Economic Development in China - WTO Accession and Related Issues, 
in WTO ACCESSION AND SOCIO-ECONOMIC DEVELOPMENT IN CHINA 1, 1-18 (Basu K 
Parikshit & Bandara M. W. Y. eds. 2009); Basu K. Parikshit, H icks John & Sappey Richard, 
Socio-Cultural Challenges to Economic Growth in China-Looking Ahead, in WTO 
ACCESSION AND SOCIO-ECONOMIC DEVELOPMENT IN CHINA, at 165-84. 

43 See generally Robert Howse & Joanna Langille, Permitting Pluralism: The Seal 
Products Dispute and Why Should Permit Trade Restrictions Jus~ified by Non-Instrumental 
Moral Values, 37 YALEJ. INT'LL. 367, 367-426 (2012). 



64 COLUMBIA JOUR NAL OF ASIAN L AW [Vol. 30:51 

introduced to address NTCs were received by developing countries with 
suspicion, resistance , and even hostility. 44 Develop~g countr~es, 
including China, doubt the authenticity of such considerations and t~nk 
they might actually hide protectionist purposes. Moreover, developing 
countries see these measures as a means the industrialized world uses to 
impose its own social, ethical, and cultural values on developing country 
exporters. Nonetheless, not only has China undergone serious reforms 
and adopted new regulations to address the issue of NTCs, but the 
country has even begun to play an important role in the international 
negotiations on NTCs-such as those on climate change, energy, culture, 
and so on. 

In fact, China could play a leading role in this field for both cultural 
and geostrategic reasons. China is trying more and more to develop its 
soft power and to harmonize its commercial power with its strong cultural 
beliefs. From this perspective, the discourse on "As ian values" launched 
by the conservative government of Singapore-and which was then 
silenced by the Asian crisis during the 1990s-can be r eart iculated in 
terms of international law. 

The "Asian values" can be explained as the one which emphasizes 
social stability, privileging community and duties over the rights of the 
individual , as compared to the "western" approach , which is accused of 
advocating an individualistic approach to rights that prioritizes the 
individual's rights against society. 46 

The goal is to both minimize the value of the critics towards human 
rights by qualifying them as Western, and promote fundamental rights 
as closer to the "Asia n" thought: 46 "First of all, in many countries in Asia 
and south East Asia, the sense of 'human rights ' is very weak and foreign, 
and they have no theoretical background for the concept of human rights. 
Rather they are concerned with overcoming starvation and poverty not 
by means of promoting human rights but by increasing national wealth 
and mutual aid." 47 

"" Han Sung-Joo, Forward & Asian Values: An Ass et or a Liabilit y, in CHANGrNG 
VALUES IN ASIA: THEIR IMPACT ON GOVERNANCE AND DEVELOPMENT 3, 9 (Han Sung-Joo ed., 
Japan Center for International Exchange 2003) ("To many Asian lea der s, Western concern 
for areas such as human rights and the environment is often seen as unwarranted 
interference at best and as revealing ulterior motives at wor st . "). See also PETER V Pu'-DEN 
BOSSCHE, NICO SCHRIJVER & GERRIT FABER, UNILATERAL MEASURES ADDRESSING NON 
TRADE CONCERNS. A STUDY ON WTO CONSISTENCY, RELEVANCE OF OTHER LWER.'IATIOKAL 
AGREEME1'i"TS, ECONOMIC EFFECTIVENESS AND IMPACT ON DEVELOPIKG COUNTRIES OF 
MEASURES CONCERNING NON-PRODUCT-RELATED PROCESSES AND PRODliCTlON METHODS 
xxix (The Ministry of Foreign Affairs of the Netherlands 2007 ) . 

» Yvuonne Tew, Beyond ''.Asian Values": Rethinking Rights 3 (CGHR Working Paper 
5, Cambridge: University of Cambridge Centre of Governance & Human Rights, Nov. 2012 ), 
www.repository.cam.ac. u.k/bitstream/handle/1810/245115/CGHR _ WP _5_2012_Tew .pdf?se 
quence=8. See also Paolo Davide Farah, L'ln/luenza della Concezione Confuciana sulla 
Costruzione del Sistema Giuridico e Politico Cinese, in lDENTITA. EUROPEA E POLITlCHE 
MIGRATORIE 193, 193-226 (Giovanni Bombelli & Bruno Montanari eds., 2008) . 

-16 Tew, supra note 45, at 5. 
17 Hyakudai Sakamoto, Foundations of East Asian Bioethics, 6 EUBlOSJ. AsIA.~ & I:s."T'L 

BIOETHICS. 31, 31-32 (1996). 



2016] TRADE AND PROGRESS: THE CASE OF CHI NA 65 

Today , China's dependence on energy has become the main obstacle 
to the development of its power. 48 To tackle this issue, China has entered 
into a global redefinition of power strategy, which has two main features: 
the regionalization of power as a means and energy security as an end .49 

To promote energy security, China will make full use of its domestic 
resources, diversify energy supplies, and further invest in exp loration 
and energy infrastructure. According to China 's Eleventh Five-Year Plan 
(2006-2010), China will try to meet its energy demand mainly with 
domestic supplies, as mentioned, utilizing coal as the main source of 
energy. 50 

While discussing a country's policies with regard to its non-trade 
concerns , including the question of energy security, it becomes pertinent 
to have r egard for emerging aspects of sovereignty . 

On the one hand , the creation of international organizations like the 
United Nations (UN) , WTO, and IMF seems to mark the end of nation 
states or at least partially question their sovereignty. On the other, the 
formation of regional powers-Brazil in South America, the France-
Germany axis in Europe, Russia in Eastern Europe, South Africa in 
Southern Africa, India in Southeast Asia, China in East Asia , and so on-
has introduced new actors , thus questioning the status of the ult imate 
decision maker and of international bodies themselves, while facilitating 
negotiations within smaller groups of actors sharing a similar history and 
culture , which could help take over the impasse faced by both trade 
(GATT/WTO) and environmental (Kyoto Protocol) 51 multilateral 
consultations. Because of the shortcomings of multi latera l agreements, 
RT As have become defining features of the globalization process over the 
last few years. The need for further trade and economic development 
between states is evident in the developing country regions, in particular, 
but it is arguable whether the RTAs will risk jeopardizing the 
multilateral trading system leaving the bittersweet residue of success of 
such regional negotiations , including further protection of NTCs , without 
having reached an effective and real worldwide minimum consensus on 
such important matters that globalization affects so dramatically. In 
short, the perspective on the integration of world regions through 
regional trade agreements is Janus -faced. Particularly when negotiations 
between countries with disproportionate levels of economic power take 
place , trade agreements can have a powerful effect on political stability 
and increase the risk of inter-state conflict as well as intra -state conflict 

48 Gabri elle Marceau, The WTO in the Emerging Energy Governance Debate, 5 GLOBAL 
TRADE & CUSTOMSJ. 83, 83 (2010). 

49 See generally PAOLO FARAH & PIERCARLO ROSSI, CONNECTING ENERGY, SECURITY 
AND SUSTAINABILITY BETWEEN EUROPE AND AslA: POLICY, LEGAL AND SOCIAL-E CONOMIC 
DIMENSION (Eurasia-Pacific Rim Book Series , Imperial College University Press/World 
Scientific 2015). 

50 XUECHENG LIU, CHINA'S ENERGY SECURITY AND ITS GRAND STRATEGY (2006 ), 
http ://www .sta nleyfo undation.org /publications /pab / pab06chinasenergy.pdf. 

s1 Kyoto Pro toco l to the United Nations Framework Convention on Climate Change, 
Dec . 10, 1997 , UN Doc. FCCC/CP/1997/7/Add.l; 37 ILM 22 (1998). 



66 COLUMBIA JOUR NAL OF ASIA.I\. LAW [Vol. 30:51 

because of the economic adjustments involved in pursuing regional trade 
integration . Conversely, regional blocks with like-minded countries that 
have similar economies or socio-cultural similarities serve as powerful 
tools to negotiate based on common interests both within and outside the 
WT0.s2 

The paradox of China's potential to be a new global regional player 
promoting the recognition and protection of NTCs-for example through 
the recognition of the right to water- 63 is based on certain conditions 
that conflict with the very reasons that motivate its implementation. 

At the cultural level, the quest for Chinese soft power is motivated by 
the will to retrieve its qualification of"Asian culture," which Chma should 
represent on the front line. China promotes an antagonistic vi ion, based 
on the defense of the East Asian culture threatened by the West, which, 
in the short term, can prove unifying at the national and regional levels , 
but is extremely risky in the long term: "(former] President Hu Jintao has 
said China must strengthen its cultural production to defend agamst the 
West's assault on the country's culture and ideology, according to an 
essay in a Communist Party policy magazine [ ... ]: 'We must clearly see 
that international hostile forces are intensifying the strategic plot of 
Westernizing and dividing China, and ideological and cultural fields are 
the focal areas of their long-term infiltration, ' Mr. Hu said, according to 
a translation by The Associated Press." 64 The risk is that of approaching 
any conflict in cultural terms, so as to make it impossible to find a 
consensus between different civilization perspectives. 

On the other hand, in terms of international law , the integration of 
NTCs in the text of WTO agreements requires the creation of a global 
constitutionalization of the law, 55 which would allow a limitation of the 
WTO's power even within its scope of action-in the same way in which 
the constitution restrains the authority of the laws. 56 This limitation 
reflects a set of principles that are not just economic. Certainly, tlus 

•
2 

Paolo Farah & Piercarlo Rossi, National Energy Policies and Energy Security in the 
Context of Climate Change and Global Environmental Risks: A Theoretical Frameu:ork for 
Reconciling Domestic and International Law Through a Multiscalar and Multiletel 
Approach, 20 EUR. ENERGY & ENVTL. L. REV. 232, 232-44 (2011). 

113 
China voted in favor of the right to water in the sixty-fourth plenary session of the 

General Assembly, 108•h meeting (AM). The resolution recognizes access to clean water , 
sanitati_on as a human right, accepted with 122 votes in favor, non e against, and 41 
abstentions. See Press Re_le_ase, General Assembly, United Nations, General Assembly 
Adopts Resolut10n Recogruzmg Access to Clean Water, Sanitation as Human Right, by 
Recorded Vote of 122 in Favour, None against, 41 Abstentions, U.N. Press Release 
GA/10967 (July 28, 2010) , ~ttp://www.un.org/press/enf20l0 /ga l0967 .doc. htm ; See also G.A. 
Res. 64/292, The Human Right to Water and Sanitation (Aug . 3, 2010). 

"Edward Wong, China's President Lashes Out at Western Culture, N.Y. TIMES (Jan. 
4, 2012), http://www.nytunes .com/2012 /0l/04/world/asia /c hina s-president-pusbes-back -against-western-culture.html 

"". ~O TUORY, Fundamental Rights Principl es: Disciplining the Jnstrumentalism 
of Policies, in ARGUING FUNDAMENTAL RIGHTS 33, 33-52 (A. J. Men~ndez & E. O. Eriksen eds. 2006). 

""Id. at 33-52: "Constitutions contain provisions on inst
1
·tuti·on I t· h . h h 

. . . a prac ices w 1c ave been expressly specialized m the task of the law's self limitation." 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 67 

raises two problems from China's perspective: on the one hand, China has 
the tendency to invoke a "right to development," which should prevail 
over any form of international legal regulation-human rights, 
environmental rights, right to water, right to food, and so on-whenever 
its commercial freedom is threatened, risking to reproduce the West's 
unsustainable mode of economic development . On the other, China 
cannot be yet qualified as a constitutional law regime, not only because 
some of the provisions of the Const itution of the People's Republic of 
China are subject to flexible implementation-a suitable example is the 
third line of paragraph 33 (The State respects and preserves human 
rights), which was added in 2004-but even more because China's notion 
of the rule of law dodges the fundamental principle of accountability 57 in 
order to highlight the concept of sovereignty. 58 However, the principle of 
a global constitutionalization of the right to food, water, education, 
health, and so on, requires the local regime of nationa l sove reignty to 
submit to an evaluation which is both external and reciprocal 59• 

In conclusion, it can be disc ussed whether it is up to the European 
Union and the other social actors to foster the integration of NTCs in the 
WTO, so as to ensure democratic and egalitarian participation of all 
parties to sustainable and global trade. The "Stiglitz proposals" have 
tried to advance solutions towards a fairer world trade and investment 
system with international monetary and financial reform (through the 
establishment of the "Stiglitz Commission") and also with the 
recommendation to extend the anti-dumpi ng legislation to domestic firms 
as well (180 of the report). 60 

For reaching the re levant objectives of sustainab le development, this 
proposal should be broadened and it should extend the anti -dumping 
legislation even further in order to adopt legal measures that set trade to 
social and environmental standards whose overall non -compliance 
amounts to a disguised subsidy. In this sense, it could be a solution to 
"constitutionalize" NTCs within the WTO. 61 

•1 U.N. Report of the Secretary-General, The Rule of Law and Transitional Justice in 
Conflict and Post-Conflict Societies, 6, U.N. Doc. S/2004/616 (Aug. 23, 2004):, 6: "[The 
rule oflaw] refers to a principle of governance in which all persons, institutions and entities, 
public and private, including the State itself, are accountable to laws that are public ly 
promulgated, equally enforced and independently adjudicated, and which are consistent 
with international human rights norms and standards." 

"" Bing Bing Jia , A Synthesis of the Notion of Sovereignty and the Ideal of the Rule of 
Law: Reflections on the Contemporary Chinese Approach to International Law, 53 GERMAN 
Y.B. INT'LL. 11, 11-64 (2010). 

•s On this point, see Bjorn Ahl, Exploring Ways of Implementing International Human 
Rights Treaties in China , 20 NETH. Q. HUM. RTS. 361, 361 (2010). See also Bjorn Ahl, 
Statements of the Chinese Government before Human Rights Treaty Bodies: Doctrine and 
Practice of Treaty Implementation, 12 AUSTL. J. AsIAN L. 82, 82 (2010). 

oo Joseph E. Stiglitz, A New Agenda for Global Warming, in THE ECONOMISTS' VOICE: 
TOP ECONOMISTS TAKE ON TODAY'S PROBLEMS 22, 22-27 (Joseph E . Stiglitz, Aaron S. Edlin 
& J. Bradford Delong eds. , 2008); see also PAOLO FARAH & ROBERTO SOPRANO, DUMPING E 
ANTIDUMPING 3-7 (2009). 

s, Commission of Experts of the President of the United Nation General Assembly, 
Report on Reforms of the International Monetary and Financial System 47-108 (Sept. 21, 



68 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

III. NON-TRADE CONCERNS STATUS IN THE WTO MULTILATERAL 
SYSTEM 

1. Integrating NTCs in the WTO 

At the outset it should be noted that NTCs have no clear definition . 
Even the WTO Doha Ministerial Declaration did not provide an official 
definition of NTCs. The conference only stated that 62 "[they] take note of 
the non-trade concerns reflected in the negotiating proposals submitted 
by Members and confirm that non-trad e concerns will be taken into 
account in the negotiations as provided for in the Agreement on 
Agriculture."63 In theory , "defini ng NTCs and adopting clear criteria 
would be the best way even for the most ardent free trader or export 
minded country"6 4 since the latter country will know the rule of the game 
and the balance that must be made between trade issues and NTCs. As a 
matter of fact, NTCs are difficult to specify and, considering the 
extremely different domestic conditions and large number of WTO 
Member States , they cannot readily be shaped with models aimed at 
assessing the economic effects of alternative scenarios. 65 Moreover, 
several countries have an interest in maintaining this undefined context 
and refuse any attempt to regulat e the many different aspects of NTCs to 
avoid the potentially high costs for their economies of a binding set of 
rules adopted at the WTO. Yet, "a balance must be established in the 
WTO between trade liberalization and NTCs where the economic 
dimension of trade will be balanced with non-economic values."66 

The Agreement on Agriculture 67 allows governments to pursue NTCs 
such as food security, poverty alleviation, environmental protection and 
rural development through the use of domestic support measures.68 Some 
countries have questioned the way that other States may pursue 
objectives related to NTCs if their doing so will cause trade distortion . 
The agreement allows all WTO Members to maintain some support 
measures to achieve the above mentioned objectives. 69 Developing 

2009), http://www.un.org/ga/econcrisissummit/docs/FinalReport_ CoE. pdf. 
62 Simpson & Schoenbaum, supra note 25, at 401. 
63_ W_orld Trade ?rganization, Committee on Agriculture, Special Session, Agriculture: 

Negotiations on Agnculture, WTO Doc., Modalities Phase: Chairperso 11 's Ovenieu· Paper 
TN/AG/6 (Dec. 18, 2002). ' 

04 Simpson & Schoenbaum, supra note 25, at 403. 
&; RALF PETERS & DA YID VANZETTI, SHIF'i'ING SANDS, SEAR CHL'-.G FOR A C0;1tPRO;1USE 

INTHEWTONEG~IATIONSONAGRICULTURE, at 10, U.N. Doc. UNCTAD/ITCD/TAB/(Policy 
Issues m International Trade and Commodities Study Series. 23 u N s I N E 04 II D 4 (United Nations 2004). • · · a es o. · · · · 

66 Simpson & Schoenbaum, supra note 25, at 400. 
ITT Agreement o_n Agriculture, Apr. 15, 1994, Marrakesh Agreement Establishing the 

World Trade Organization, Annex lA, 1867 U.N.T.S. 410 
68 J~sef Schmidhuber et al., Agricultural Trade, Tr~de Polici es and the Global Food 

System, m WORLD AGRICULTURE: TOWARDS 2015/2030· AN FAQ p Bruinsma ed. 2003). · ERSPECTIVE 232, 245 (Jelle 
GO SUSAN ARIEL AARONSON & JAMIE M. ZIMMERMAN TRADE 

S W H L\IBALA."sCE: THE TRUGGLE TO EIGH UMAN RIGHTS CONCERNS IN TRADE 56 (2007). 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 69 

countries asked for a degree of flexibility in the area of domestic support 
in order to address their NTCs issues. 70 That is why, for instance, they 
demanded st ronger provisions on NTCs as well as special and differential 
treatment . 71 NTCs' matters seem to be accepted to a large degree; 
nevertheless , a problem occurs when discussing the extent of their 
application and the instruments necessary to support these NTCs in both 
dev eloped and developing countries.12 

Members have filed disputes before the WTO regarding matters 
related to the interplay between trade and NTCs, especially following the 
accession of new Members to the WTO multilateral system . Generally 
speaking, the Appellate Body is qualified to interpret the rights of 
Members as set out in the WTO covered agreements. The Appellate Body 
in China - Raw Materials, 73 in response to Chinese claims that a State 
has the right to regulate trade, stated the following: " ... we understand 
the WTO Agreement, as a whole, to reflect the balance struck by WTO 
Members between trade and non-trade-related concerns." 74 The 
Appellate Body considered that a Member joining the WTO has 
abandoned all rights to regulate NTCs in exercising its sovereignty and 
the right to regulate trade. Yet, certain questions remain unanswered 
suc h as, "[is the Appellate Body] qualified to determine and to interpret 
the rights of Members to regulate non-trade-related concerns that are not 
set out in the WTO Agreement?" 75 

The following sections analyze the mechanism by which NT Cs 
matters were integrated in the WTO multilateral system while focusing 
on the existing legal provisions related to every NTC as well as the case 
law before the Dispute Settlement Body that played an essential role in 
opening the door for integration of these concepts with a balance of free 
trade. 

70 JOSEPH A MCMAHON, THE NEGOTIATIONS FORA NEW AGREEMEN"T ON AGRICULTURE 
45 (20 11). 

11 Miho Shirotori (United Nations Conference on Trade and Development) , Notes on the 
Implementation of the Agreement on Agriculture, in A POSITIVE AGENDA FOR DEVELOPING 
COUNTRIES: ISSUES FOR FUTURE TRADE NEGOTIATIONS 125, 156, U.N. Doc. 
UNCTAD/ITCDtrSB/10 (UNITED NATIONS CONFERENCE ON TRADE AND DEVELOPMENT ed., 
2000). 

12 Susette Biber-Klemm & Michael Burkard, The Impact of Agriculture Subsidies, in 
RIGHTS TO PLANT GENETIC RESOURCES AND TRADITIONAL KNOWLEDGE: BASIC ISSUES AND 
PERSPECTIVES 324, 354 (S usette Biber-Klemm & Thomas Cottier eds., 2006). 

1a Panel Report, China - Measures Related to the Exportation of Various Raw 
Materials, WTO Doc. WT/DS394/R, WT/DS395/R, WT/DS398/R (Jul. 5, 2011); Appellate 
Body Report, China - Measures Related to the Exportation of Various Raw Materials, 
WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R (Ja n . 30, 2012). See also Asif H. 
Qureshi, Distinguished Essay: Reflections on the Global Trading Order Twenty Years After 
Marrakesh: A Development Perspective, in EUROPEAN YEARBOOK OF INTERNATIONAL 
ECONOMIC LAW 93, 93-100 (C. Hermann, M. Krajewski & J.P. Terhechete eds., 2014). 

1• Appe llat e Body Report, China - Measures Related to the Exportation of Various Raw 
Materials, 306 WTO Doc. WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R (adopted 
Jan. 30, 2012). 

75 Qureshi, supra note 73, at 104. 



70 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

2. The Interpla y among Environment, Health, and Trade, and the 
Prospects for the New Acceding Members: China as a Case Study 

China, like other Member States, has joined the WTO on the basis of 
Accession Protocols and has benefited from the dispute settlement 
under standing which became applicable to disputes. 76 The Accession 
Protocol is considered an "integral part of the WTO Agreement." 77 

However, a country aiming to participate in an established international 
organization will have more obligations and criteria to fulfill and 
integrate in its own internal legal system compared to the founders of 
such organization, which actively created and decided how to shape and 
develop the rules of the system. 7s Moreover , the alteration of the 
obligations of an existing Member State in case of an accession of a new 
Member is not consistent with the WTO rules. 79 Additionally, existing 
WTO Members have a willingness to use their bargaining power to obtain 
further commitments and economic policy changes from States seeking to 
join the WT0. 80 As a consequence , there is the impressi on that recently 
acceded Members became second-class citizenry without having the 
capacity to fully exploit the rights under WTO law , while being burdened 
by additional negotiated obligations. 81 

In the case of the Protocol of Accession of China, such obligations 
"exceed[ed ] the existing requirements of the WTO agreements,"8 2 and 
China 's obligations are not only unique but more stringent than those of 
the current Member States. 83 However , since China's accession in 2001 , 
other new Member States, such as Vietnam, were obliged to accept even 
more WTO plus commitments than China. 

China's commitments cover "areas ranging from the administration 
of China's trade regime (transparency, judicial review, [ ... ]), to the 
Chinese economic system (market economy commitments), to new WTO 
disciplines on investment (such as investment measure [ ... ])." 84 

Simultaneously, China has obtained significant concessions, in particular 
extensions that allow China to postpone the termination of some of its 

76 Matthew Kennedy, The Integrat ion of Accession Protocols into the WTO Agreement, 
47 J. WORLD TRADE 45, 48 (2013). 

77 Panel Report, China - Measures Related to the Exportation of Rare Earths Tungsten 
and Molybdenum, WTO No. WT/DS431/R, WT/DS432/R WT/DS433/R t 7 79' (M 26, 
2014). ' • a · ar. , 

78 Antonio Parenti, Accession to the World Trade Organisation: A Legal Analysis 27 
LEGAL ISSUES OF ECONOMIC INTEGRATION 141 , 155 (2000). ' 

79 Id. at 156. 
80 Mitali Tyagi, Flesh on a Legal Fiction: Early Practice in the WTO on Accession 

Protocols, 15 J. INT'L ECON. L. 391, 395 (2012). 
81 Id. at 397. 
82 Julia Ya Qin "WTO-Pl "Obl. · · 

0 . . Le i's us igatwns and Their Impl ications for the World Trade 
rganzzatwn ga ySlem - An Appraisal of the China Accession Protocol 37 J WORLD 

TRADE. 483, 483 (2003). ' . 
83 WORLD TRADE ORGANIZATION HA.l\ffiBOOK ON AC 

SUBSTANCE OF ACCESSION NEGOT ' CESSION TO THE WTO: CHAPTER 5, 
/acc_e/cbt_course_e/c5slp l _e. htm. IATIONS <2008 ), https://www.wto.org/english/thewto_e 

84 Qin , supra note 82 at 483. 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 71 

WTO inconsistent measures which might be offset by some of the 
incumbent Members' more stringent obligations.85 

China recently made use of the notion of NTCs in its disputes to 
justify mainly measures to protect the environment. 86 Its attempts to 
define the role of international trade in determining environmental 
outcomes and the effects of trade on the environment have generated 
some controversy. 87 

From the beginning, the WTO has almost exclusively prioritized free 
trade over environmental protection when it comes to the trade -
environment conflict. 88 That is why the WTO was called "GATT -zilla", 
which describes a trade monster that was intent on eating its way 
through the global ecosystem. 89 In fact, coherence among WTO rules and 
existing multilateral treaties regarding the environment has often been 
lacking. 90 Moreover, the WTO initially gave little attention to climate 
change. 91 Principles such as the Polluter-Pays 92 leave it to the parties to 
determine the means by which to implement their obligations. 93 
Additionally , because of climate change, some Members have begun to 
debate the transfer oflow carbon technologies to States in need. 94 Broadly 
speaking, energy issues did not get much prominence at the WTO, yet the 

86 Tokio Yamaoka, Analysis of China's Accession Commitments in the WTO: New 
Taxonomy of More and Less Stringent Commitments, and the Struggle for Mitigation by 
China, 47 J. WORLD TRADE. 105, 155 (2013). 

86 Bill Butcher, WTO Open Trade Rules and Domestic En vironmental Protection 
Poli cies: A Balancing Approach, in ENVJRONMENTAL TAXATION AND GREEN FISCAL REFORM: 
THEORY AND IMPACT 69 , 71-77 (Larry Kreiser et al. eds., 2014). 

87 Werner Antweiler, Brian R. Copeland & M. Scott Taylor, Is Free Trade Good for the 
Environment?, 91 AM. ECON. REV. 877, 877 (2001). 

88 DAVID COATES, KATHY SMITH & WILL (C. WILLIAM) WALLDORF, THE OXFORD 
COMPANION TO .M,1ERICAN POLITICS 440 (David Coates ed. 2012). On the fragmentation of 
international law, the lack of coherence and the need of a multiscalar and multilevel 
approach to face the challenges of climate change, see FARAH & ROSSI, supra note 52. 

89 J. Samuel Barkin, The Environment, Trade and International Organizations, in 
HANDBOOK OF GLOBAL ENVIRONMENTAL POLITICS 334 , 335 (Peter Dauvergne ed. 2005). See 
also Andrew L. Strauss, From GATTzilla to the Green Giant: Winning the Environmental 
Batt le for the Soul of the World Trade Organization , 19 U. PA. J. INT'L ECON. L. 769, 769 
(1998). 

oo Johanne Muller, Strengthening Deuelopment Politics and Global Partnership, in 
CLIMATE CHANGE, JUSTICE AND SUSTAINABILITY: LINKING CLIMATE ru'ID DEVELOPMENT 
POLICY 331,333 (Ottmar Edenhofer et al. eds., 2012). 

s1 David Satterthwaite et al., Adapting to Climate Change in Urban Areas, The 
Possibilities and Constraints in Low- and Middle -Income Nations, INTERNATIONAL 
INSTITUTE FOR ENVIRONMENT AND DEVELOPMENT, HUMAN SETTLEMENTS, 91 (2007), 
http://pubs.iied.org/l0549IIED.html. 

02 According to the principle , "the polluter should bear the expenses of carrying out the 
pollution prevention and control measures decided by public authorities to ensure that the 
environment is in an acceptable state." See Jean-Philippe Barde, Economic Instruments in 
Enuironmental Policy: Lessons From the OECD Experience and Their Releuance to 
Deueloping Economies, OECD , 5-6 (1994), http: //www.oecd.org /de v/1919252 .pdf. 

93 BRADLY J. CONDON & TAPEN SINHA, THE ROLE OF CLIMATE CHANGE IN GLOBAL 
ECONOMIC GOVERNANCE 38 (Oxford University Press 2013). 

11< Ramgopal Agarwala, Towards a Global Compact for Managing Climate Change, in 
POST-KYOTO INTERNATIONAL CLIMATE POLICY: IMPLEMENTING ARCHITECTURES FOR 
AGREEMENT 179, 195 (Joseph E. Aldy & Robert N. Stavins eds., 2010). 



72 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

landscape started to change as many oil producing countries have joined 
the Organization. 95 Energy trade is one of the most significant trade 
sectors and constitutes the largest primary commodity of global trade in 
terms of volume and value.96 It is worth mentioning that WTO rules are 
relevant to the energy sector, while energy security and climate 
mitigation constitute priorities on the global agenda. 97 

The first generation of GATT/WTO, pre-1994 cases, from 1982 to 
1994, invoking environmental concerns through GATT Article XX 
highlighted a negative approach from the adjudicatory bodies for 
considering environmental matters under Article XX of the GA'l'T. 98 In 
the United States - Tuna and Tuna Products from Canada case, 99 an 
import prohibition on tuna and tuna products imposed by the United 
States against Canada was found discriminatory by the Panel and could 
not be justified under Article XX (g) of the GATT since no equivalent 
restrictions on domestic production and consumption of tuna were 
imposed.100 According to the United States, it has to be also highlighted 
that the measure had been put in place as a retaliatory measure to the 
Canadian arrest of the U.S. vessels fishing tuna. 101 In the Tuna/Dolphin 
I case, 102 the United States imposed a ban on the import of Tuna from 
countries whose "incidental kill ration" of dolphins was greater than its 
own on the basis of Article XX (b) or (g) of the GATT.103 Mexico challenged 
the US measure claiming that the latter violated article XI of the GATT. 
Yet, the Panel decided that the restrictive measure could not be justified 
under Article XX (b) or (g) of the GATT. 104 The main criticism in both 

95 Paolo Davide Farah & Elena Cima, Energy Trade and the WTO: Impl ications for 
Renewable Energy and the OPEC Cartel, 16 J. INT'L ECON. L. 707, 707-40 (2013); Paolo 
Davide Farah & Elena Cima, L'Energia nel Co,itesto Degli A ccordi dell'OMC: Soi;venzioni 
per le Energie Rinnovab ili e Pratiche OPEC di Controllo dei Prezzi, 2 DIRITI'O DEL 
COMMERCIO INTERNAZIONALE 343 , 343-81 (2013); Sajal Mathur & PreetI Mann, 
GATTIWTO Accessions and Energy Security, in TRADE, THE WTO AND ENERGY SECURITY: 
MAPPING THE LINKAGES FOR INDIA 73 , 74 (Sajal Mathur ed., 2014 ). 

98 RAFAEL LEAL-ARCAS, ANDREW FILIS, & EHAB S. ABU Gos, INTERNATIONAL ENERGY 
GOVERNANCE: SELECTED LEGAL ISSUES 138 (2015). 

97 Alan Yanovich, WTO Rules and the Energy Sector, in REGULATION OF ENERGY IN 
INTERNATIONAL TRADE LAW: WTO, NAFTA AND ENERGY CHARTER 1, 42 (Yulia Selivanova 
ed. 2011). . 

98 See General Agreement on Tariffs and Trade , Art. XX, Oct. 30, 1947, 61 Stat. A-11, 
55 U.N.T.S 194, https://www.wto.org/englisb/docs_e/legal_e /gatt47 01 e.htm [hereinafter 
GATT]. - -

99 Report of the Panel, United States · Prohibition of Imports of Twia and Tuna 
Products from Canada, L/5198 - 29S/91, 4.10 - 4.12 (Feb. 27 , 1982). 

100 NATHALIE BERNASCONI-0STERWALDER, ENVIRONME)IT A.'ffi TRADE: A GU1DE TO 
WTQ JURISPRUDENCE 87 (2005 ). 

101 Report of the Panel, United States - Prohibition of Imports of Tuna and Tuno 
Products from Canada, L/5198 - 29S/91, 4.13 (Feb. 27, 1982). 

102 Report of the Panel, United States - Restrictions on Imports of Tuna, DS21/R (Sep. 
3, 1991). 

103 Paul Ekins & Robin Vanner, Reducing the Impacts of the Production and Trade of 
Commodities, in TRADE, GLOBALIZATION A.'\"1) SUSTAINABILITY L\fPACT AssESS~lE:\"I': A 
CRITICAL LoOK AT METHODS AND OUTCOMES 277 281 (Paul Ek " & T d V ·t · eds. 2009). ' ms ancre e 01 unez 

1
0

1 &'<UREAS F. LoWENFELD, INTERXATIONAL ECONO~UC LAW 389-91 (2d ed., 2008). 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 73 

Tuna/Dolphin cases was that national coercion was used through trade 
restrictions to force foreign countries to protect dolphins. These critics 
were pointing out that US national measures were illicit because they 
had an extraterritorial effect with the objective to influence 
environmental policies of other States. In this situation, the United 
States employed unilateral trade restrictions to encourage a number of 
nations to abandon tuna fishing techniques that killed dolphins.105 Before 
adopting these trade distorting measures, however, the United States 
should have tried to make use of other means to obtain similar results in 
favor of the values they aimed to protect (the environment) with less 
trade restrictive effects.1° 6 The ruling in the 1994 Tuna/Dolphin case,101 
brought by the Netherlands and the European Community, which was 
affected as secondary exporters of tuna imported from primary producing 
countries , confirmed that Article XX cannot be interpreted in such a way 
to permit the application of trade measures with extraterritorial effects 
within the jurisdiction of other Member States with the objective of 
forcing those countries to change their policies. 108 Thus, also in this case, 
the measure could not be justified under Article XX of the GATT signaling 
that the WTO is giving primacy to trade over the environment.109 It is 
worth highlighting that the present case shows a difference in the 
approach of the adjudicatory body. The Panel noted in 15.16, 15.17 and 
15.31 that the General Agreement did not in an absolute manner prohibit 
measures related to resources outside the territorial jurisdiction of the 
party taking the measure. 110 

In the United States - Superfund case, 111 the environmental aspects 
of toxic waste formed the background of the dispute rather than having a 
direct influence on the result. 112 In this case, the European Community, 
Canada, and Mexico claimed that a US excise tax, a corporate income tax 
and appropriations on petroleum, and a tax on certain imported 
substances produced or manufactured from taxable feedstock chemicals 
may have breached Article III.2 of the GATT.1 13 The Panel established 

105 David M. Drie sen, What is Free Trade ?: The Real Issue Lurking Behind the Trade 
and Environment Debate, 41 VA. J. INT'L L. 279, 279-368 (2001). 

106 Panel Report, United States - Restrictions on Imports of Tuna, DS29/R , '1/5.28 (June 
16, 1994 ). Here the Panel pointed out that the U.S. by not using other means to achieve 
sim ilar results had failed to fulfill the necessity requirement for invoking the Article XX (b) 
exceptio n. 

,01 Id. 
1os PETER R. GARDINER & K. KUPERAN VISWANATHAN, ECOLABELLING AND FISHERIES 

MANAGEMENT 20-21 (20 04). 
100 KATI KULOVESI, THE WTO DISPUTE SETTLEMENT SYSTEM: CHALLENGES OF THE 

ENVIRONMENT, LEGITIMACY AND FRAGMENTATION 85 (2001). 
110 Vanda Jakir, The New WTO Tuna Dolphin Decision: Reconciling Trade and 

Environment?, 9 CROATIAN Y.B. EUR. L. POLY 143, 149 (2013), http://www.cyelp.com/index. 
php/cyelp/article/view/155/115. 

111 Panel Report, United States - Taxes on Petroleum and Certain Imported Substances, 
U6175 - 34S/136 (June 17, 1987). 

112 KRISTA NADAKAVUKAREN SCHEFER, SOCIAL REGULATION IN THE WTO: TRADE 
POLICY AND INTERNATIONAL LEGAL DEVELOPMENT 159 (2010). 

113 FEDERICO ORTINO, BASIC LEGAL INSTRUMENTS FOR THE LIBERALISATION OF TRADE: 



74 COLUMBIA JOURNAL OF As/AN LAil' [Vol. 30:51 

that the first set of measures on petroleum constituted a violation of 
Article III.2 of the GATT because there was a tax differential applied to 
imported products compared to domestic ones. 114 The United States 
Government did not argue about the existence of this differential, but 
stated that the measure's trade effects were irrelevant and , for this 
reason, no violation of the GATT/WTO agreements should be found. 
However, the Panel rejected this argument because the sole violation of 
the provision's letter is sufficient. Regarding the second measure on 
certain imported substances produced or manufactured from taxable 
feedstock chemicals, the Panel recognized that the tax applied was 
perfectly aligned with the WTO rules since it was a licit border tax 
adjustment .us According to the United States, the revenue of this tax was 
used to sponsor environmental programs in favor of the domestic l:.S. 
producers. 

Nevertheless, the Panel's interpretation adopted in this case, 
unfortunately, does not seem to be supported by more recent case law. In 
fact, it took time for the dispute settlement body to recover from the past , 
the positive provisions and thoughts included in the opinions of the 
adjudicatory bodies of this case and develop, in more recent cases, 
environmentally friendly interpretations of the WTO agreements. Far 
from being perfect, those interpretations in favor of the environment in 
the United States - Superfund case are even more relevant if we 
remember that this case was ruled in 1987. 

In the Thailand - Cigarettes case, 116 Thailand decided to permit the 
importation and exportation of tobacco seeds , tobacco plants, tobacco 
leaves, plug tobacco, shredded tobacco , and tobacco only by license on the 
basis of public health concerns. 117 The US challenged Thailand's decision 
under Article XI of the GATT to apply quantitative restrictions on the 
importation of cigarettes, claiming that the Thai government permitted 
the sale of domestic cigarettes. Moreover, in the event the cigarette 
imports were permitted, Thailand applied higher internal excise taxes on 
the imported cigarettes compared to the taxes applied to domestic like 
products. Thailand argued that these restrictions were justified by the 
exception contained in Article XI:2(c), because cigarettes should be 
classified as agricultural or fisheries products within the meaning of 
Article XI. Furthermore, the Thai Government did not have to apply 
these measures to the domestic production as well because, as observed 
by the Panel, the US cigarettes were not considered like products since 

A COMPARATIVE ANALYSIS OF EC AND WTO LAW 128 (2004) . 
111 

GARY CLYDE HUFBAUER, STEVE CHARNOVITZ & JIS UN KlM , GLOBAL \VARMING A.'"D 
THE WORLD TRADING SYSTEM 41 (2009). 

••~ YULIA SELIVANOVA, Managing the Patchwork of Agreem ents in Trade and 
Investment, in GLOBAL ENERGY GOVERNANCE: THE NEW R ULES OF THE GAME 49 59 
(Andreas Goldthau & Jan Martin Witte eds., 2009). ' 

116 
Report of the Panel, Th-ailand - Restrictions on Import-ation of and Internal Taxes 

on Cigarettes, D$10/R - 37S/200 (Nov. 7, 1990). 
117 

OBIJIOFOR AGINAM, GLOBAL HEALTH GOVERNANCE: INTERNATIOX'AL LAW A.,'D 
Pu13LIC HEALTH IN A DIVIDED WORLD 84 (2005). 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 75 

they contained additives and flavorings that make them easier to smoke 
than their Thai counterparts. Hence, public health concerns affirmed by 
the World Health Organization (WHO) seem to arise from the ease of 
access factor attached to western cigarettes and the consequent increase 
in smoking. Further, the WHO submitted expressly that there was a lack 
of scientific evidence to prove as to which cigarette was more harmful 
than the other. 118 Then, the Panel considered such measures to control or 
reduce the consumption of cigarettes to fall within the scope of Article XX 
(b) but nevertheless found Thailand 's measure on license and 
quantitative restrictions unnecessary since less trade-restrictive 
alternatives existed, such as warning labels or ingredients lists, 119 

despite the fact that in the 1990s the World Health Organization heavily 
criticized the US Government and cigarette companies while aiming to 
reduce tobacco-related mortality. 120 To the contrary, the Panel did not 
consider the higher internal excise taxes for imported cigarettes in 
violation of Article III of the GATT because the legislation did not 
mandate the State authorities to apply these higher taxes to the imported 
products, but rather left it as an option.121 

In the Canada-Herring Salmon case, 122 a Canadian national measure 
made it compulsory for herring and salmon caught in Canadian waters 
to be processed in Canada before being exported. Canada attempted to 
justify the measure on the basis of Article XX(g) for the conservation of 
natural resources. 123 When it came to the interpretation and application 
of Article XX(g), the Panel limited itself to a restrictive interpretation of 
the text of Article XX(g), reducing the possible scope of application of the 
exception. 124 

The outcome of the disputes demonstrates that all the environmental 
questions pivoted, to a large extent, on GATT Article XX. With the 
intention of saving the trading system the adjudicatory bodies have 
sometimes used unreasonable legal justifications and other times very 
restrictive interpretations and reasoning as to why Article XX could not 
be used. However, these claims threatened the trading system by causing 

118 Report of the Panel, Thailand - Restri ctions on Importation of and Internal Taxes 
on Cigarettes, ,i 52-53, DSlO/R - 37S/200 (Nov. 7, 1990). 

119 LAWRENCE 0. GOSTIN, PUBLIC HEALTH LAW: POWER, DUTY, RESTRAINT 264 (2d ed. 
2008). 

120 Report of the Panel, Thailand - Restrictions on Importation of and Internal Taxes 
on Cigarettes , 50-57, DSlO/R - 37S/200 (Nov. 7, 1990). See also David P. Fidler & Martin 
S. Certon, Int ernational Considerations, in LAW IN PUBLIC HEALTH PRACTICE 93, 116 
(Richard A. Goodman et al. eds., 2d ed. 2007). 

121 FABIO COSTA MOROSINI, THE MERCOSUR AND WTO RETREADED TIRES DISPUTE: 
REHABILITATING REGULATORY COMPETITION IN INTERNATIONAL TRADE AND 
ENVIRONMENTAL REGULATION 17 (2007). 

,22 Panel Report, Canada - Measures Affecting Exports of Unprocessed Herring and 
Salmon, U6268 - 35S/98 (Mar. 22, 1988). 

123 MASSIMILIANO MONTINI, The Necessity Principle as an Instrunient to Balance Trade 
and the Protection of the Environment, in ENVIRONMENT, HUMAN RIGHTS AND 
INTERNATIONAL TRADE 135, 148 (Francesco Francioni ed. , 2001). 

12, Id. at 148-49. 



76 COL UMBIA J OURNAL OF ASIAN LAW [Vol. 30:51 

concerns about its hostile attitude toward the enviro nm ent. 125 The 
Appellate Body corrected the Pan els' errant holdings made in the US -
Gasoline, US - Shrimp , and EC - Asbestos cases signaling to the public 
that the era of runaway Panel s on envir onment al matters had ended. 126 

It is worth mentioning that the C.A.F.E. case was the first to open the 
new era for balancing trade and environment before the above mentioned 
cases created a shift in the dispute set tl ement rulings. 127 In this case, the 
EU challenged the US corporate average fuel economy standard, the "gas 
guzzler " tax, and the luxury tax on cars over $3 0 ,000. The Panel decided 
that these measures were discriminat ory. At the same time, it did not 
confirm the restrictive interpretation of the "necessity" test by the EU in 
its statement and found, according to the US argument, that the measure 
to be justified under Article XX neede d to be "primarily aimed at" the 
conservation of exhaustible natural r esources and at rendering effective 
restrictions imposed on domestic produ ction and consumption. Therefore, 
the United States was not obliged to take the least restrictive measures 
to serve environmental goals 128 becau se, as determined by the Panel, ifno 
requirement was placed on imported cars, the C.A.F.E. program's 
objectives would be prejudiced sinc e lar ge imported cars would not be 
subject to any restriction on fu el consumption. Thus , the application of 
fleet averaging to imported cars in a similar manner as its application to 
domestic cars clearly served the purpo se of fuel conservation, and served 
to render effective the conservation measure. In these respects, fleet 
averaging met two of the key requirements of Article XX(g). 

Paragraph 5.66 of this dispute states: 
This analysis suggested to the Panel that in the absence of 
separate foreign fleet ac counting it would be possible to 
include in a revised CAFE regulation an averaging method 
that would render the CAFE regulation consistent with the 
General Agreement. As such a revised method was only 
hypothetical at this time (since fleet averaging did not exist 
i~dependently of separate foreign fle et accounting) , and 
smce the CAFE regulation would in the view of the Panel 
require substantial change if se par ate foreign fleet 
accounting were removed , the Panel did not consider tha t 
it c?uld or sho~ld make a finding on the consistency of a 
rev~sed regulat10n. This could only be determined on the 
basis of the actual elements of a revised CAFE scheme. 

For that reason, the decision confirmed the inconsistency of the US 

125 Steve Charnovitz, Trade and the Environment · th WTO 
1-27 (2007 ). m e , 10 J. LWL ECON. L. 1, 

1'26 Id. at 14-15. 
m Report of the Panel, United States - Taxes on A t · 
128 LINDAA. MALONE INTERNATIONAL LA 2 u omobiles, DS31/R (Oct. 11, 1994). 

' W 05 (Emanue l La ' 0 tli 1995 ) S ls Report of the Panel, United States-Taxe A . "' u nes . ee a o 
11, 1994). son utomobiles, 5.59, 5.63-5.66 , DS31/R (Oct. 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 77 

measures with the WTO agreements.129 
In spite of some court decisions that were not aligned with the 

protection of health , the environment and the principles of sustainable 
development , the relevant case law together with the work of other 
international organizations and negotiations beyond the WTO, strongly 
influenced the passage from the GATT to the WTO in 1995 to embrace a 
new trade dimension that takes NTCs into due consideration. Indeed , the 
WTO's Preamble recognizes among the listed objectives: "allowing for the 
optimal use of the world's resources in accordance with the objective of 
sustainable development, seeking both to protect and preserve the 
environment and to enhance the means for doing so in a manner 
consistent with their respective needs and concerns at different levels of 
development. "130 In fact, the protection of NTCs in the following case law 
has grown increasingly robust since January 1, 1995, when the WTO 
officially commenced. 

When it comes to the cases that highlight the shift in the dispute 
settlement reasoning, the Panel in US - Gasoline 131 weighed a US 
measure on air quality establishing one scheme to regulate the content of 
imported gasoline and another to regulate the content of US gasoline. The 
Appellate Body under the newly created WTO modified the Panel 
reasoning by stating that the interpretation of GATT Article XX requires 
a two-step analysis, verifying first whether the measure at stake falls 
under one of the provision's subparagraphs and, second, whether it 
complies with the chapeau. 132 Here , the Appellate Body found that the 
US measure was indeed covered by paragraph (g) of Article XX,133 but it 

129 Report of the Panel, United States - Taxes on Automobiles, 5.66, DS31/R (Oct. 11, 
1994). 

130 WTO Analytical Index: Marrakesh Agreement, Preamble to the Marrakesh 
Agreement Establishing the World Trade Organization , WORLD TRADE 0RGANJZATION, 
https: //www.wto.org/ENGLISH/res_e /booksp_e/analytic_index_e/wto_agree_O l_e . htm (last 
visited June 2, 2017). 

131 Panel Report, United States - Standards for Reformulated and Conventional 
Gasoline, WT/DS2/R (Jan. 29, 1996 ); Appellate Body Report, United States· Standards for 
Reformulated and Conventional Gasoline, WT/DS2/9 (May 20 , 1996). 

132 Hans J. Crosby , The World Trade Organisation Appellate Body - United States v. 
Venezuela: Interpreting the Preamble of Article XX - Are Possibilities for Environmental 
Protection under Article XX (g) of GAIT Disappearing, 9 VILL. ENVTL. L. J. 283, 283 (1998), 
http: //digitalcommons.la w. villanova.ed u/cgi/viewcon ten t.cgi ?article= l 189&context=elj. 

133 W. J. DAVEY, WTODispute Settlement Practice Relating to CATT 1994, in THE WTO 
DISPUTE SE'ITLEMENT SYSTEM 1995-2003 (STUDIES IN TR.AKSNATIONAL ECONOMIC LAW SET) 
191 , 204 (Federico Ortino & Ernst-Ulrich Petersmann eds., 2004); Sophie Nappert & 
Federico Ortino, International Resolution of Energy Trade and Investment Disputes, in 
REGULATION OF ENERGY IN INTERNATIONAL TRADE LAW: WTO, NAFTA AND ENERGY 
CHARTER 303 , 313 (J ulia Selivanova ed., 2011); BEN SAUL, DAVID KINLEY & JAQUELINE 
MOWBRAY, THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 
1081 (2014); ROBERT READ, Process and Production Meth ods and the Regulation of 
International Trade, in THE WTO AND THE REGULATION OF INTERNATIONAL TRADE: RECENT 
TRADE DISP UTES BETWEEN THE EUROPEAN UNION AND THE UNITED STATES 239, 259 
(Nicholas Perdikis & Robert Read eds., 2005); M. Kent Ranson et al., The Public Health 
Implications of Multilateral Trade Agreements, in HEALTH POLICY IN A GLOBALISING WORLD 
18, 21 (Kelley Lee, Kent Buse & Suzanne Fustukian eds., 2002). 



78 COLUMBIA JO URNAL OF ASIAN L AW [Vol. 30:51 

could not be justified under the chapeau because of the discrimu:iatory 
element of the measure. More precisely , the Appellate Body consid ered 
the manner of application of the mea sure, "disguised restriction on 
international trade" and "arbitrary or unjustifiabl e discrimination", and 
not the specific contents of the mea sure as such, should not const itute 
abuse of the exception . 134 

Similarly, in the US - Shrimp dispute, 135 although the Appellate B~dy 
declared that the US import ban appli ed to shrimp for protectmg 
endangered turtles on the high seas and in foreign juri sdictions was 
related to the conservation of exhaustible natural resources and thus 
covered by Article XX(g) , the exception was n ot applicab le because the 
measure was not justifiable under th e chapeau of Article XX. 136 In 
paragraph 185 of its report the Appellate Bod y stated: 

In reaching these conclusions , we wis h to underscore 
what we have not decided in this appeal. We have not 
decided that the protection and pr eservation of the 
environment is of no significanc e to the Members of the 
WTO. Clearly, it is. We have not decided that the 
sovereign nations that are Members of th e WTO cannot 
adopt effective measures to protect endangered species, 
such as sea turtles. Clearl y , they can and should. And we 
have not decided that sovereign Stat es should not act 
together bilaterally , plurilat erall y or multilaterally , 
either within the WTO or in ot h er international fora, to 
protect endangered species or to otherwise protect the 
environment. Clearly, they should and do.137 

This is an impqrtant statement to supp ort t h e protection of the 
environment and advice to the WTO Member States to find proactively 
and jointly a balance and an agreement between trade and environme nt 
in the WTO and in other international contex ts. 

In the Asbestos case ,138 banning Asbe stos on the basis of protecting 

134 Chang-Fa Lo, The Proper In terpretation of 'Disguised R est riction on International 
Trad e' under the WTO: The Need to Look at the Protective Effect, 4 J. lnt. Disp. Settlement . 
11 l, 111-37 (2013). See also Padideh Ala 'i, Free trade or Sustainable Development? An 
Anal ysis of the WTO Appellate Body's Shift to a More Balanced Approach to Trade 
Liberalization , 14 AM. U. INT'L L. REV. 1129, 1159 (1999). 

136 Appellate Body Report , United States - I mport Prohibition of Certain Shrimp and 
Shrimp Products , WT/DS58/AB/R (Oct. 12, 1998); Panel Report, United States - Im port 
Proh ibition of Certain Shrimp and Shrimp Products, WT/DS58/RW (June 15, 2001); 
Appellate Body Report, United States - Import Prohibition of Certain Shrimp and Shrimp 
Produ cts Recoitrse to Article 21.5 of The DS U by Malaysia, WTO Doc. WT/DS58/AB/RW 
(Oct. 22, 2001). 

136 Ernst-Ulrich P etersm a nn , From "Member -Driven Governance" to Constitutionally 
Limited "Multile vel-Trade Governance" in the WTO, in THE WTO AT TEN: THE 
CONTRIBUTION OF THE DISPUTE SETTLEMENT SYSTEM 86, 101 (Gio rgio Sacerdoti et al. eds. 
2006). , 

. 
137 

Appellate Bod: Report, United States - Import Prohibition of Certain Shrimp and 
Shnmp Products , "/180, WTO Doc. WT/DS58/AB/R (Oct. 12, 1998) (emphasis adde d). 

13'.' ~anel Report, European Communities - Meas ures Affecting Asbestos and Asbestos-
Containing Product s, WT/DS135/R (Sep 18 2000) and Appell te Bod R E · • a y eport, uropean 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 79 

public health 139 was ultimately found to be justified under article XX(b) 
and the chapeau of Article XX140 because no discrimination was found 
between the domestic and imported products. As such, the WTO 
Agreements support the Members' ability to protect human health and 
safety at the level of protection they deem appropriate. The same 
argument was applied a few years later, in the Brazil - Retreaded Tyres 
dispute, 141 where the Panel and the Appellate Body held that the ban of 
European tires was necessary to protect health and the environment, but 
it was applied inconsistently with the WTO requirement because the 
restrictive measures did not include all exporting countries. 142 In fact, 
Brazil imposed restrictions on EU retreaded tires justifying the measure 
under Article XX as necessary for the protection of human health since 
the accumulation of waste tires constitutes a breeding ground for 
mosquitoes which spread malaria and dengue fever while causing long-
term toxic leaching. The Panel accepted Brazil's claims.1 43 However, 
Brazil excluded MERCOSUR from these restrictive measures, 144 so the 
Appellate Body reversed the Panel's ruling with respect to the analysis 
under the chapeau of Article XX due to the violation of the non-
discrimination principles within the meaning of the chapeau of the Article 
XX and requested that Brazil apply and extend these provisions to all 
countries. 145 Despite the importance of the WTO Panels and Appellate 
Body's rulings for the protection of public health and the environment, 
some critics alleged that the settlement created a narrow construction of 
the public health exception to GATT. 146 Scholars lamented the loss of 
national control over health risks due to these decisions while indicating 
that the WTO favors the markets over other values. 147 However, despite 
the criticism, it is clear from these cases that the WTO dispute settlement 

Communities - Measures Affecting Asbestos and Asbestos-Containing Products, 
WT/DS135/AB/R (Mar. 12, 2001). 

139 Helen Walls et al., Trade and Global Health, in GLOBALIZATION AND HEALTH 100, 
107 (2d ed. Johanna Hanefeld ed., Open Un iversity Press 2014); GEOFFREY COCKERHAM & 
WILLIAM COCKERHAM, HEALTH AND GLOBALIZATION 119 , 134 (2010). 

1<0 KULOVESI, supra note 109, at 102. 
1•1 Panel Report, Braz il, Measures Affecting Imports of Retreaded Tyres, WTO Doc. 

WT/DS332/R (June 12, 2007); Appellate Body Report, Brazil - Measures Affecting Imports 
of Retreaded Tyres, WTO Doc. WT/DS332/AB/R (Dec. 3, 2007). 

142 Julia Ya Qin, Managing Conflicts Between Rulings of the World Trade Organization 
and Regional Trade Tribunals: Reflections on the Brazil-Tyres Case, in MAKING 
TRANSNATIONAL LAW WORK IN THE GLOBAL ECONOMY: ESSAYS IN HONOUR OF DETLEV 
VAGTS 601, 607 (Peiter H.F. Bekker, Rudolf Dolzer & Dr . Michael Waibel eds. 2010); 
MOHAMMAD F. A. NSOUR, RETHINKING THE WORLD TRADE ORDER: TOWARDS A BETTER 
LEGAL UNDERSTANDING OF THE ROLE OF REGIONALISM IN THE MULTILATERAL TRADE 
REGIME 79 (2009). 

ua TRACEY EPPS, INTERNATIONAL TRADE AND HEALTH PROTECTION: A CRITICAL 
ASSESSMENT OF THE WTO 230 (2008). 

141 NSOUR, supra note 142, at 79. 
145 Appe lla te Body Report, Brazil - Measures Affecting Imports of Retreaded Tyres, 

'IJ233, 259, WTO Doc. WT/DS332/AB/R (Dec. 3, 2007). See also Qin, supra note 142, at 607. 
146 Nikolaos Lavranos , The Brazilian Tyres Case: Trade Supersedes, Health, l TRADE L. 

& DEV. 230, 231 -59 (2009). 
147 COCKERHAM & COCKERHAM, supra note 139, at 134. 



80 COLUMBIA JOUR NAL OF ASIAN LAW [Vol. 30:51 

body has struck a balance between the protection of public health and 
trade, while prioritizing the former in case of a serious public health 
matter. 

As a matter of fact, a relevant shift in the dispute settlement ruling 
can be seen in the Tuna/Dolphin Case II of 2011. 148 In this case, Mexico 
claimed that the US measures establishing the conditions for the use of a 
"Dolphin-Safe" label on tuna products, which may vary depending on the 
geographical area and location where the tuna is caught and the type of 
vessel and fishing method by which it is harvested , breached Articles I: 1 
and III:4 of the GATT, as well as other articles related to the TBT 
Agreement. 149 

As stated in the Appellate Body Report at Paragraph 172, tuna 
caught by "setting on" dolphins is currently not eligible for a "dolphin -
safe" label in the United States, regardless of whether this fishing method 
is used inside or outside the Eastern Tropical Pacific Ocean (ETP). 150 As 
described in footnote 355 of the Appellate Body Report, "the fishing 
technique of 'setting on' dolphins takes advantage of the fact that tuna 
tend to swim beneath schools of dolphins in the ETP. The fishing method 
involves chasing and encircling the dolphins with a purse seine net in 
order to catch the tuna swimming beneath the dolphins. "15 1 

Even according to the recent compliance Panel Report requested 
under Article 21.5 of the DSU, following the Panel and Appellate Body 
Reports, tuna caught in the Eastern Tropical Pacific large purse seine 
fishery, where most of Mexico 's fleet fishes are, could be labeled as 
"dolphin safe" only if both the captain and an independent observer 
certified that the tuna was caught without harming dolphins. Tuna 
caught in all other fisheries would require only a captain certification 
with a lower level of costs for the final product. These relevant differences 
amounted to de facto discrimination against Mexican tuna and tuna 
products because such tuna were subjected to additional burdens and 
costs not faced by tuna caught by other WTO Members. 

The WTO Panel started addressing the question of whether a 
voluntary labeling requirement can be conceived of as a technical 
regulation that must comply with the TBT Agreement where a legal test 
will then be conducted to check if the measures are applied in a 
discriminatory manner and, ifso, whether they are more trade restrictive 

MS Panel Report, United States - Measur es Concerning the lmportatio11, Marketing and 
Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/R (Sept. 11, 2011); Appellate Body 
Report, United States - Measures Concerning the Importation, Marketing and Sale of Tuna 
and Tuna Products, WTO Doc. WT/DS381/AB/R (May 16, 2012) ; Panel Report, United States 
- Measures Concerning the Importation , Marketing and Sale of Tuna and Tuna Products 
Recourse to Article 21.5 of the DSU by Mexico, WTO Doc. WT/DS381/RW (Apr. 14, 2015). ' 

1' 9 Vicki Waye, International Trade Law, Climate Change and Carbon Footprinting, in 
SUSTAINABLE BUSINESS: THEORY AND PRACTICE OF BUSINESS UNDER SUSTAINABILITY 
PRINCIPLES 251, 255-56 (Geoffrey Wells ed. 2013). 

160 Appellate Body Report, United States - Measures Concerning the Importation 
Marketing and Sale of Tuna and Tuna Products, ,i 172 , WTO Doc. WT/DS381/AB/R (Ma; 
16, 2012). 

1s1 Id. 69. 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 81 

than necessary to fulfill a legitimate objective_ 1s2 In this situation the 
Panel did not find the US measures discriminatory since they applied to 
capture method rather than the national origin of the products. However, 
the Appellate Body reversed the Panel's finding and judged these 
measures as discriminatory, considering that the US measures de facto 
granted most US products and like products from other WTO Members 
better conditions and corresponding, relevant competitive advantages to 
access the US market that did not apply to Mexican tuna products.153 The 
Appellate Body further developed this reasoning and noted that, "the US 
measure does not address mortality (observed or unobserved) arising 
from fishing methods other than setting on dolphins outside the ETP, and 
that tuna caught in this area would be eligible for the US official label."154 

Moreover, the Appellate Body reversed the Panel's findings that 
Mexico had demonstrated that the US "Dolphin-Safe"labeling provisions 
are more trade-restrictive than necessary to fulfill the United States' 
legitimate objectives .155 The Appellate Body considered that the Panel's 
analysis and its comparison between the challenged measure and 
Mexico's proposed alternative measure was imprecise and inconsistent 
and that "the Pane l erred in concluding, in paragraphs 7.620 and 8.l(b) 
of the Panel Report, that it has been demonstrated that the measure at 
issue is more trade restrictive than necessary to fulfil the United States' 
legitimate objectives, taking account of the risks non -fulfilment would 
create." 156 For this reason, the Appellate Body reversed the Panel's 
findings that the measure at issue is inconsistent with Article 2.2 of the 
TBT Agreement.157 

This case shows the WTO's clear shift from favoring trade openness 
over environmental concerns. Compared with the decision in the previous 
Tuna GAIT/WTO cases, the decision in the Tuna/Dolphin Case II of 
2011, recognizing the protection of the environment and sustainable 
development in the TBT Agreement as a means of derogation from the 
provisions (when applied in a non-discriminatory way) and against the 
principle of territoriality (that was strictly applied in Tuna-Dolphin Case 
I), 158 clearly demonstrates an attempt to reconcile trade rules with 
NTCs.159 

The EU Seals case, in which the "public morals" exception contained 

1s2 Sofya Matteotti & Olga Nartova, Implementation and Monitoring of Process and 
Produ ction Methods, in TRADE AGREEMENTS AT THE CROSSROADS 167, 171-72 (Susy Frankel 
& Meredith Lewis eds., 2013) . 

153 Waye, supra note 149 , at 256. 
1s• Appellate Body Report, United States - Measures Concerning the Importation, 

Marketing and Sale of Tuna and Tuna Products, 251 , WTO Doc. WT/DS381/AB/R (May 
16, 2012) (citations omitted). 

155 Id. 333. 
156 Id. 331. 
157 RAFAELLEAL-ARCAS, CLIMATE CHANGE AND INTERNATIONAL TRADE 131 (2013). 
,sa Report of the Panel, United States - Restrictions on Imports of Tuna, DS21/R (Sep. 

3, 1991). 
159 JAMES K. R. WATSON, THE WTO AND THE ENVIRONMENT: DEVELOPMENT OF 

COMPETENCE BEYOND TRADE 190 (2012). 



82 COLUMBIA JOUR NAL OF ASIAJ\' L AIV [Vol. 30:51 

in Article XX(a) of the GATT was raised related to an "environmental 
issue " like the inhuman method of hunting seals, also demonstrates the 
emergence of environmental concerns in WTO case law. 160 However , in 
EU Seals, the result was different because the respondent could not 
successfully verify the chapeau of Article XX. Still , the Appellate Body 
upheld the Panel's finding that the EU Seal Regime is "necessary to 
protect public morals" within the meaning of Article XX(a) of the GA TT 
1994. Nevertheless, it is Article XX of the GATT that represents a 
deliberate determination to grant WTO Member States the decision on 
the scope of a domestic measure regarding NTCs. 161 One might say that 
Article XX of the GATT provides the last bit of sovereignty left to the 
Member States in the WTO system. It allows a country to impose trade 
restrictions when requirements under Article XX are met. Likewise, 
quantitative restrictions on trade and discriminatory regulation of 
foreign commerce under some circumstances which also include 
environmental laws could be applied. 162 Yet , some States employ trade-
restrictive measures to protect domestic industry. Furthermore, some 
countries tried to benefit from the exceptions mentioned in Article XX to 
alter other states' trade policies within their own jurisdiction. 

Most scholars agreed that it was impossible for China to maintain a 
perfect implementation record following its accession to the WTO (as has 
happened to all WTO Member States) , and disputes over the correct 
implementation of China's WTO obligations were certain to arise. 163 The 
high risk of China's non-compliance with WTO rules meant that China 
had to accept the instruments , procedures , and multilateral (as opposed 
to bilateral) framework of the WTO dispute settlement system despite 
China's legal culture and past resistant attitude towards international 
adjudication. 164 

Among the WTO's many challenges , environmental protection is one 
of the most debated NTCs within the organization. Certainly, 
Multilateral Environmental Agreements (MEAs), the ongoing 
international negotiations on climate change , and the increasing number 
of countries with sophisticated environmental law s and regulations have 
pushed the WTO to gradually open its door to environmental concerns. 
However, considering the high diversity of interests and needs of the 
Member States, when States attempt to justify trade barriers or different 

160 Panel Report, European Communities - Measures Prohibiting the Imp ortation and 
Marketing of Seal Products, WTO Doc .. ~T/DS400/R, WT/DS401/R (Nov. 25, 2013); 
Appella_te Body Report, European Communities - M easures Prohibiting the Importati on and 
Marketing of Seal Products, WTO Doc . WT/DS400/AB/R , WT/DS401/AB/R (May 22, 2014). 

161 Driesen, supra note 105, at 279-300. 
162 1d. 
163 Craig Pouncey et al., China as a WTO Memb er: Systemic Issu es in DOING BUSINESS 

WITH CHINA~• 19-20 (Jonathan Reuvid & Li Yong eds. 2008). , 
16' Marcia Don Harpaz, Sens e and Sensibilities of China and WTO Settlement, in CHDIA 

AND GLOBAL TRADE GOVERNANCE: CHINA'S FIRST DECADE IN THE WORLD T E 
ORGANIZATION 233, 240 (Ka Zeng & Wei Liang eds., 2013). See also F h tRAD4~ 
at l93 -226 . ara , supra no e a, 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 83 

treatment based on environmental issues, the majority of developing 
countries interpret these NTCs as a form of green protectionism. 165 

China, like many other developing countries, has prioritized economic 
growth over environmental concerns, which has caused an incredibly 
high level of air and water pollution and produced many other 
environmental and health impacts on the population. 166 On the other 
hand, it has to be recognized that China's accession to the WTO (and its 
participation in other international organizations and fora, such as the 
climate change negotiations) has positively influenced the country's 
internal environmental regulations, which it has strengthened to comply 
with international standards.1 67 While it is disputable that China fully 
complies with the positive environmental laws and regulations that it has 
adopted throughout its entire territory, it has also adopted discriminatory 
laws and regulations in other fields by disguising their justifications 
based on environmental concerns and sustainable development to secure 
governmental control and adopt discriminatory trade measures in order 
to boost its internal market and favor its domestic industry. 

The mining sector offers an excellent example of the extent to which 
such governmental control can push itself. State ownership over mineral 
resources is exercised by the State Council and is not affected by the 
alteration of ownership of the land where the resources are found. 
According to the Mineral Resource Law of the People's Republic of 
China, 168 "[m]ineral resources belong to the State" 169 and there is 
actually a straightforward reason to which the Chinese Government 
might root its claims. Such reason is to be found in public international 
law, where ownership of natural resources-and hence all kinds of raw 
materials-rests upon the legal concept of sovereignty. 170 The latter 

1so Ura P. Thomas, Trade and the Environment: Stuck in a Political Impasse at the 
WTO after the Doha and Cancun Ministerial Conferences, 4 GLOBAL ENVTL. POL. 9, 18 
(2004). 

100 Regarding the water management in China and how the EU Water Framework 
Directive might be an excellent model for China, see Deng Yixiang et al., China's Water 
Environmental Management Towards Institutional Integration. A Review of Current 
Progress and Constraints vis-a-vis the European Experience, 113 J. CLEANER PRODUCTION 
285, 285-98 (2015). 

161 Xingle Long et al., Are Stronger Environmental Regulations Effective in Practice? 
The Case of China's Accession to the WTO, 39 J. CLEANER PRODUCTION. 161, 161-62 (2013). 
See also Malin Song et al., Statistical Analysis and Combination Forecasting of 
Environmental Efficiency and its Influential Factors since China Entered the WTO: 2002- · 
2010-2012, 42 J. CLEA..'ffiRPRODUCTION. 42, 42-51 (2013). 

168 Kuangchan Ziyuan Fa (Tff'=l1fit&i'i;) [Mineral Resource Law] (promulgated by the 
Standing Comm. Nat'l People Cong. Aug. 29, 1996, effective Jan 1. 1997), 
http: //www.c hina.org.cn /english/environment/34342.htm. 

169 Id. art. 3. 
110 See Jorge E Vinuales, The 'Resource Curse' - A Legal Perspective, 17(2) GLOBAL 

GOVERNANCE 197, 197-212 (2011). See also James N. Hyde , Permanent Sovereignty over 
Natural Health and Resources, 50 AM. J. INT'L L. 854, 854 (1956); NICO SCHRIJVER, 
SOVEREIGNTY OVER NATURAL RESOURCES: BA.LANCING RIGHTS AND DUTIES (1997); Thomas 
Dietz , Elinor Ostrom , & Paul C. Stern, The Struggle to Govern the Commons, 302 SCIENCE 
1907 1907 (2003); Lynton K. Caldwell, Concepts in Development of International 
En vi~onmental Policies, 13 NATURAL RESOURCES J. 190, 190 (1973); Julia Ya Qin, 



84 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

evolved through a series of Resolutions adopted by the United Nations 
General Assembly starting in 1952 , establishing the "rights of peoples 
and Nations to permanent sovereignty over their natural wealth and 
resources." 111 Sovereignty over natural resources derives from 
sovereignty over a State's territory, which implies control of such 
resources as well as sovereignty over all the activities that take place 
within that territory. However, such doctrine might seem unfair if we 
consider the so-called resource curse: since natural resources are 
unevenly distributed throughout the world , it would not be entirely fair 
to grant States such exclusive rights. This concern led to the emergence 
of the doctrine of the environment as common concern of mankind. 1i 2 

According to this principle , the domestic use and exploitation of natural 
resources are elevated beyond exclusive national jurisdiction to a point of 
international concern and therefore subjected to international 
regulation. 173 

Given its rich broad variety of raw materials, China chose to stick to 
the first principle and exercised strict control over its resources. This 
principle perfectly suited China's development agenda and, through its 
power over natural resources, the country managed to lift hundreds of 
millions of people out of poverty, sustaining an average Gross Domestic 
Product (GDP) annual growth rate of 9.3% during the past 20 years. 1i 4 

Such principle is even enshrined in the Constitution ;175 wherein Article 6 
states that , "The basis of the socialist economic system of the People's 
Republic of China is socialist public ownership of [the means of 
production], " where "means of production" certainly includes raw 
materials and natural resources.176 

The State control over the country's resources takes different forms 

Reforming WTO Discipline on Export Duties: Sovereignty over Natural Resour ces, Economic 
Development and Environmental Protection, 46 J. WORLD TRADE. 114 7, 1163-65 (2012). 

171 
G.A Res. 626 {VII), U.N. Doc. A/RES/626{VII) (Dec. 21 , 1952). The UN General 

Assembly based this important document on two previous resolutions : resolutions 523 (VI) 
of January 12, 1952 and 626 {VII) of December 21 , 1952. The idea expressed here was then 
confirmed and further explored by the two 1966 International Human Rights Covenants as 
well as two resolution s-resolution 3201 (S.VI) of May 1, 1974, and resolution 3281 (XJCIX) 
of December 12, 1974. 

172 
The "common concern of mankind" principle substituted the earlier "common 

heritage of mankind " concept, first introduced by Arvid Pardo in 1968 but adopted by the 
international community only two decades later. See PATRICIA BIRNIE & ALAN BOYLE, 
INTERNATIONAL LAW AND THE ENVIRONMENT 97-99 (2d ed., 2002); EDITH BROWN WEISS, 
E:-N!RONMENTAL CHANGE AND INTERNATIONAL LAW: NEW CHALLENGES ANO DIMEXSIOXS 
(1992); PHILIPPE SANDS, GREENING INTERNATIONAL LAW (1993); PHILIPPE SANDS, RICHARD 
TARASOFSKY & MARV WEISS, PRINCIPLES OF IKTERNATIONAL EXVIROl',MENTAL LAW (1994); 
LAURENCE BOISSON DE CHAZOURNES, ETHJQUE ENVIRONNEMENTALE ET DROIT 
INTERNATIONAL (2003); KEMAN BASLAR, THE CONCEPT OF THE C0~10N HERITAGE OF 
:r.iANKIND IN INTERNATIONAL LAW 306 (1998). 

173 
Ben Saul, China, Resources, and Int ernational Law 9 (Sydney Law School Legal 

Studies Research Paper No. 11/8 2, Nov. 2011). ' 
mJd. 
11s XlANFAart. 6 (1982) (China). 
176 

Xu Xuelei & Xu Xin, Information Disclosure of State-Owned Enterpris es in China 4 
TSINGHUA CHINA L. REV. 1, 14 (2012). ' 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 85 

and can be seen as the root cause of the two main strategies adopted by 
China to support, boost, and foster its domestic industry: on the one hand, 
the limitation of the quantity of raw materials that can be exported 
(export restraints) and, on the other, of the possibility for foreign firms to 
access the Chinese market. Under both strategies, the government plays 
a crucial role. 

In fact, when it comes to NTCs, the main WTO disputes involving 
China and concerning NTCs related to environmental matters 
specifica lly are China - Raw Materialsl 77 and China - Rare Earths.178 

In the first dispute, Beijing imposed restrictive measures on the 
export of nine types of raw materials, in particular various forms of 
bauxite, coke, fluorspar , magnesium, manganese, silicon carbide, silicon 
metal, yellow phosphorus , and zinc. The US, the EU, and Mexico 
challenged these measures claiming that they breached China's 
commitments under China's Accession Protocol Part r,119 para. 1.2, Part 
I, para. 5.1, Part I, para. 5 .2, Part I, para . 8.2, Part I, para. 11.3 and GATT 
Articles VIII, VIII:l, VIII:4 X:1, X:3 (a), XI:1180 since the new regulations 
constituted export duties, export quotas , export licensing, and minimum 
export price requirements.181 

These exports restraints increased the prices of raw materials at the 
global markets and, as a consequence, the Chinese domestic industries 
gained advantage through sufficient supply and lower prices. The 
Chinese Government claimed that these measures were justified under 
Article XX of the GA TT. 

In fact, China had stated among its arguments that some of its export 
duties and quotas were justified because they were measures "relating to 
the conservation of exhaustible natural resources" for some of the raw 
materials. However, China was unable to provide evidence that it 
adopted these restrictions in conjunction with measures applicable to 
domestic production or consumption of the raw materials so as to 
conserve the raw materials. It is important to highlight here that even 
though the decision did not favor China, the Panel acknowledged that 
China appeared to be on the path to adopting a legal framework to justify 
its quotas under WTO rules, but that the framework was not yet WTO-
consistent because it still needed to be put into effect for domestic 
producers to avoid any accusation of violating the WTO non-
discrimination principles. 

111 Panel Report, China - Measures Related to the Exportation of Various Raw 
Materials, WTO Doc. WT/DS394/R, WT/DS395/R, WT/DS398/R (Jul. 5, 2011); Appellate 
Body Report, China - Measures Related to the Exportation of Various Raw Materials, WTO 
Doc. WT/DS394/AB/R, WT/DS395/AB/R, WT/DS398/AB/R (Ja n. 30, 2012). 

1;s Panel Report, China - Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum, supra note 77; Appellate Body Report, China - Measures 
Related to the Exportation of Rare Earths, Tungsten, and Molybdenum, WTO Doc. 
WT/DS431/AB/R, WT/DS432/AB/R, WT/DS433/AB/R (Aug. 7, 2014). 

m Accession of the People's Republic of China, WTO Doc. WT/U432 (Nov. 23, 2001). 
1so GATT, supra note 98, at arts. VIII:l(a), X:l, X:3(a) & VI:1. 
1s1 Butcher, supra note 86, at 72-73. 



86 COLUJl,[]3JA JOURNAL OF ASIAN LAW [Vol. 30:51 

As to the other raw materials, China claimed that its export quotas 
and duties were fundamental and necessary in view of protecting the 
public health and its people. Unfortunately, China could not produce 
evidence that the adopted measures, such as export duties and quotas , 
would reduce pollution, in the short or long-term, and therefore improve 
the health of its citizens. 

The Panel and Appellate Body had to examine whether China could 
use Article XX to justify its failure to comply with its commitments under 
Paragraph 11.3 of China's Accession Protocol. In China - Publications and 
Audiovisual Products, China 's defense based on Article XX was allowed 
as the language of paragraph 5.1 of China's Accession Protocol granted 
China the right to regulate trade. 182 Taking note of the same, the 
Appellate Body in China - Publications and Audiovisual Products stated 
that the language of Paragraph 11.3 being in contrast to paragraph 5.1, 
does not suggest that China may have recourse to Article XX to justify a 
violation of its obligation to eliminate export duties. 183 

Thus, the debate over the place of the Accession Protocols in the WTO 
multilateral system continues since the basis on which WTO Accession 
Protocols take legal effect has not been raised in the DSB. 18 4 That is why, 
for instance, the Appellate Body had the opportunity to take a different 
reasoning concerning the application of Article XX to the Accession 
Protocols. Moreover, the Appellate Body confirmed the Panel's position 
that even if Article XX was applicable in this case, China has failed to 
provide a link between the measures taken and the objective of protecting 
the environment and public health. 185 Thus, the NTCs argument was 
rejected. 

The second dispute, China - Rare Earths, concerned export 
restriction measures that Beijing adopted on Rare Earths , Tungsten, and 
Molybdenum (which are raw materials used in the production of various 
kinds of electronic goods), 186 with the justification of protecting the 
environment, preserving resources, reducing pollution caused by mining , 
and promoting sustainable development. 187 According to China's 
Accession Protocol, China must eliminate all export duties except for 

182 Panel Report, China - Measures Affecting Trading Rights and Distribution Services 
for Certain Publications and Audiovisual Entertainment Produ cts, WTO Doc. WT/DS363/R 
(A_ug .. 12,. 2009); ~ppellate Bod)_' Report , China - Measures Affecting Trading Rights and 
Distnbutwn Services for Certain Publicatwns and Audiovisual Entertainment Products, 
WTO Doc. WT/DS363/AB/R (Dec. 21, 2009). 

183 Appellate Body Report , China -Measures Affecting Trading Rights and Distribution 
Services for Certain Publications and Audiovisual Entertainment Products, 291, WTO Doc. 
WT/DS363/AB/R (Dec. 21, 2009); Butcher, supra note 86, at 72-73. 

184 Kennedy, supra note 76, at 46-47. 
185 Butcher, supra note 86, at 73. 
186 Panel Report , China - Measures Related to the Exportation of Rar e Earths 

Tungsten, and Molybdenum, WT~ Doc. WT/DS431/R, WT/DS432/R, WT/DS433/R, (Mar. 26'. 
2014); Appellate Body Report, China - Measures R elated to the Exportation of Rar e Earths, 
Tungsten, and Molybdenum, WTO Doc. WT/DS431/AB/R, WT/DS432/AB/R 
WT/DS433/AB/R (Aug. 7, 2014). See also Butcher , supra note 86, at 74. • 

1s; See Butcher, supra note 86, at 76. 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 87 

those included in Annex 6. With the exception of tungsten ores and 
concentrates, which are not included in the claim's terms of reference, 
none of the other products at issue are included in Annex 6. Therefore, 
China is not entitled to adopt any export duties on them. 

Once more, China tried to invoke Article XX of the GATT to justify its 
measures which were "necessary to protect human, animal and plant life 
and health" from the pollution caused by mining the products at issue. 
Yet again, both the Panel 188 and the Appellate Body found that Article 
XX did not justify the breach of Paragraph 11.3 of China's Accession 
Protocol. It is relevant to note that, although China was not successful in 
its claim , the Panel agreed with China that the term "conservation" in 
Article XX(g) does not have to be read simply as meaning "preservation" 
of natural resources. The Panel stated that, in accordance with the 
general public international law principles of sovereignty over natural 
resources in line with various United Nations and other international 
instruments as described above in this section, each WTO Member may 
take into consideration its · own internal conditions and may decide 
autonomously on how to reach the needs and objectives of sustainable 
development when preparing or adopting laws or regulations related to 
the conservation of exhaustible natural resources. However, the Panel 
clarified that "conservation" did not allow Members to adopt measures to 
control or manipulate the international market for a specific natural 

188 Panel Report, China - Measures Related to the Exportation of Rare Earths, 
Tungsten, and Molybdenum, WTO Doc. WT/DS431/R, WT/DS432/R, WT/DS433/R (Mar. 26, 
2014) . It is relevant to note that in the Section 7.3.2.1.8 of the Panel Report, ,!7.118- 7.120, 
there is a "Separate Opinion by One Panelist." This panelist "is unable to agree with some 
of th e findings and conclusions contained in Paragraphs 7.63 to 7.117 above. This section 
reflects the views of that panelist. I agree with the ultimate conclusion reached by this Panel 
that, in this dispute, China cannot justify its export duties on rare earths, tungsten, and 
molybdenum products pursuant to Article XX(b) of the GATT 1994 (GATT Article XX(b))." 
So, even if Article XX(b) was applicable to justify China's export duties, those duties were 
not "necessary to protect human, animal, or plant life or health," as required under Article 
XX(b). Under the concrete circumstances, China's imposition of the export duties in question 
was considered to be inconsistent with China's WTO obligations. The Pane l then stated: 

However , contrary to the finding made by the Panel's majority, I believe 
that a proper interpretation of the relevant provisions at issue leads to 
the conclusion that the obligations in Paragraph 11.3 of China's 
Accession Protocol are subject to the general exceptions in Article XX of 
the GATT 1994 ... I am well aware of the findings of the Panel and the 
Appellate Body in ,the China - Raw Materials dispute regarding the 
availability of Article XX of the GATT 1994 (GATI' Article XX) to justify 
violations of Paragraph 11.3 of China's Accession Protocol. In my view, 
China has submitted new arguments in this dispute that have helped 
the Panel to appreciate the legal complexity of this issue. The Panel's 
majority has undertaken a long and careful evaluation of the parties' 
arguments concerning this matter. I agree with many parts of the 
Panel's majority's analysis of this issue and I respect this Panel's 
majority decision. Nonetheless, I respectfully disagree with certain key 
aspects of its reasoning and findings ... 

This was an important statement and clarification may be used as point reference in future 
cases, but under the concrete circumstances, terms and conditions of the Chinese measures 
at issue in this case. 



88 COLUMBIA JO URNAL OF ASIAN L AW [Vol. 30:51 

resource, which is what the challenged export quotas were designed to 
do. In particular, the main objective of the measures adopted by the 
Chinese Government was to favor dom est ic extraction and secure 
preferential use of those raw material s by Chinese domestic industries. 

Another relevant issue that was exami ned at the Appellate Body level 
relates to China's claim of "intrin sic relationship " between Article XIl :l 
of the Marrakesh Agreement 189 and Paragraph 1.2 of China's Accession 
Protocol. The Appellate Body stated that "the Marrakesh Agreement, the 
Multilateral Trade Agreement s, and China 's Accession Protocol form a 
single package of rights and obligation_s that must be read together. "190 

The Appellate Body found that Paragraph 1.2 of China's Accession 
Protocol, which provides that th e Proto col "shall be an integral part of the 
WTO Agreement ," builds a bridge betw een the package of Protocol 
provisions and the package of existing WTO righ ts and obligations. 

However , this statement does not pro vide an answer to whether there 
is an objective link between an individual provision in China's Accession 
Protocol and China 's existing obligations under the Marrakesh 
Agreements and the Multilateral Trad e Agreement or whether China can 
rely on the existing general exceptions in these Agreements to justify a 
breach of its commitments under China's Accession Protocol for NTCs, in 
general, and environmental concerns, in particular.191 

The WTO has crossed a long road when it comes to balancing the 
relation between trade and NTCs where the Panels ' and Appellate Body's 
jurisprudence has ensured respect for NTCs including environmental 
matters at the expense of trade in several cases, as it was shown above. 
However, the accession of new WTO Members resulted in new obligations 
(WTO Plus Obligations) upon the acceding countries (most of them 
developing or emerging economies) which were stipulated in their 
Accession Protocols. 

There is an ongoing debate as to whether such an increase of WTO 
Plus Obligations is fair and , as descr ibed through the case law above, 
whether the WTO commitments included in the Accession Pr otocols can 
be violated on the basis of expectations stated in the GA TT , mainly 
Ar~icle. XX, since they should represent "a s ingl e package of rights and 
o_bli_gat~ons that must be read together." It is arguable that these potential 
lim1tat10ns on the use of Article XX of the GATT may be considered a new 
for1:11 of unfair discrimination perpetuated against developing countries 
which are gradually entering the WTO. Thi s is even less justifiable if it 

189 Marrakesh Agreement Es tab li shing the World Trade Organization , Apr. 15, 1994, 
1867 U.N.T.S. 154. 

190 
Appellate Body Report, China - M easures Related to the Exportation of Rare Earths, 

Tungsten, and Molybdenum, ,5.28, WTO Doc. WT/DS431/AB/R WT/DS432/AB/R 
WT/DS433/AB/R (Aug. 7, 2014). ' ' 

191 Panel Report , China - Measures Related to th E · 
Tungsten and Molyb den WTO D WT/D e xportation of Rare Earths, 

, um, oc. 8431/R , WT/DS432/R, WT/DS433/R (Mar 26 
2014); Appellate Body Report, China - Measures R elated to the E t t · fR Ea ·th ' 
Tungsten and Molybdenum WTO D xpor a ion o are r s, 
WT/DS433 /AB/R (Aug. 7, 2014). ' oc. WT/DS431 /AB/R, WT/DS432/AB/R, 



2016] TRADE AND PROGRESS: THE CASE OF CmNA 89 

may impede the adoption ofreasonable and non-discriminatory measures 
that have the sole objective of protecting the environment and facilitating 
sustainable development. 

This paradigm is yet to be clarified through supplementary WTO 
multilateral negotiations or the Panel or Appellate Body to avoid the risk 
of revitalized limitations on the applications of NTCs in the near future 
on the basis of the WTO Plus Obligations imposed on newly acceding 
WTO Members. 

So far , the decisions of the Panels and Appellate Body in the different 
cases which were filed against China adopted different attitudes and/or 
different justifications in their rulings, but generally it seems that their 
legal reasoning and clarifications (including the use of dissenting 
opinions among the Panelists), even when the final decisions were not in 
favor of the specific measures at issue which were consequently not 
justified under Article XX of the GATT, showed that the Panels and 
Appellate Body are more and more willing to carefully consider the 
environment and sustainable development. 

3. Ensuring Respect for Human Rights Matters in the Multilateral 
Trade System 

In recent decades, the WTO has increasingly come under pressure for 
reconciling the requirements of free trade with requests for protecting 
NTCs related to public health. 192 The conflict between trade and public 
health is multifaceted, spanning the clash between trade-related 
intellectual property rights and human rights, investments in research 
and development, the right to health and access to medicine, 193 and the 

192 Sieglinde Gstohl, Blurring Regime Boundaries: Uneven Legalization of non-Trade 
Concerns in the WTO, 9 J. INT'L TRADE L. & POL 'V. 275 , 275 (2010). 

193 Frederick M. Abbott, WTO TRIPS Agreement and its Implications for Access to 
Medicines in Developing Countries 8-10 (Study Paper 2a, United Kingdom Commission on 
Intel1ectua1 Property Rights, Feb. 14, 2002), http://papers.ssrn.com/so13/papers.cfm? 
abstract_id= 1924420 ; PAUL HUNT et al, NEGLECTED DISEASES: A HUMAN RIGHTS ANALYSIS 
35 (2007); World Trade Organization, Ministerial Declaration of 14 November 2001, 
WT/MIN(O 1)/DEC/2 (2002), https://www.wto.org/english/thewto_e/minist_e/minO l_e/ 
mindecl_trips_e.htm; Alexandra G. Watson, International Intellectual Property Rights: Do 
TRIPS' Flexibilities Permit Sufficient Access to Affordable HIV I AIDS Medicines in 
Developing Countries?, 32 BOSTON COLLEGE INT'L & COMP. L. REV. 143, 145-48 (2009); 
JAKKRIT KUANPOTH, TRIPS-Plus under Free Trade Agreements, in INTELLECTUAL 
PROPERTY & FREE TRADE AGREEMENTS 27, 30 (Christopher Heath & Anselm Kamperman 
Sanders eds. 2007); Peter Drahos, Four Lessons For Developing Countries From The Trade 
Negotiations Over Access To Medicines, 28 LIVERPOOL L. REV. 11, 14 (2007); Roche He Cooper 
Dreyfuss & Cesar Rodriguez-Garavito , The Battle over Intellectual Property Laws and 
Access to Medicines in Latin Amer ica; A Primer on Global Administrative Law, Intelle ctual 
Property and Political Contestation, in BALANCING WEALTH AND HEALTH: THE BA'ITLE OVER 
INTELLECTUAL PROPERTY AND ACCESS TO MEDICINES IN LATIN AMERICA 1, 17 (Rochelle 
Dreyfuss & Cesar Rodriguez-Garavito eds., 2014); DILIP K. DAS, THE DOHA ROUND OF 
MULTILATERAL TRADE NEGOTIATIONS: CAUSAL FACTORS BEIDND THE FAILURE IN CANC(JN 
12 (2003); UNITED NATION COMMISSIO:,; ON TRADE AND DEVELOPMEm & INTERNATIONAL 
CENTER FOR TRADE AND SUSTAJNABLE DEVELOPMENT, RESOURCE BOOK ON TRIPS AND 
DEVELOPMENT 484 (2005); CYNTHIA HO, ACCESS TO MEDICINE IN THE GLOBAL ECONOMY: 



90 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:5 1 

protection of tangibl e and intangible cultural heritage. 194 

In particular , the TRIP s Agreement sets international mlllllllum 
standards for the protection and enforcement of intellectual property 
rights , and allows WTO Members to insert public health concerns i~to 
their national intellectual prop erty laws. 195 The Doha Declaration 
concerning the TRIPs Agreement and Public Health includes seven 
paragraphs, and indicate s the importance that WTO Members ascribe to 
effectively addr ess ing public hea lth concerns. 

The modern multilateral trade regime and the international human 
rights movem ent constitute produ cts of post-World War II phenomena. 
Since the States have committ ed to liberalize trade in goods and services 
under international economi c law , there is the potential for conflict 
between a State 's obligations under international human rights law and 
its obligations under internati onal economic law. 196 

Each of these regimes ha s a st rong impact on the respective area of 
competence and they ar e closely interconnected, but unfortunately they 
did not develop instruments for solving problems and frictions between 
the two systems and conflicts of overlapping jurisdiction. Yet, human 
rights violations have increased in quantity and sometimes become more 
sophisticated (e.g. abuses connected to the respect of a State contract 
signed with a multinational company). For these reasons, the 
international community mu st rethink the instruments used to protect 
human rights. 

Since it is not possibl e to determine conclusively whether 
globalization has had a positive or negative effect on human rights, the 
international community, including governments, international 
organizations , civil society, policy makers, and scholars, must isolate the 
negative effects of globali za tion so they can be reframed to protect human 
rights without foregoing economic development. If the sole term of 
reference for a successful private enterprise is to decrease the prices of 
products as much as possibl e and incr ease company profits without 
considering the impact on the wealth and health of society, the endeavor 
will be unsustainable in the long-term . This is also the direct effect on the 
behavior of producers who are les s and less inclined to spend more 

INTERNATIONAL AGREEMENTS ON P ATENTS A.t"ID RELATED RIGHTS 218 (2011 ); Andrew D. 
Mitchel & Tania Voon, The TRIPS Waiver as a R ecognition of Public Health Concerns in the 
WTO, in I NCENTIVES FOR GLOBAL P UBLIC HEALTH: PATENT LAW AND ACCESS TO ESSENTIAL 
MEDICINES 56, 75-76 (Thomas Pogge, Matthew Rimmer & Kim Rubenstein eds., 2010). 

194 Pa olo D. Farah & Ricca rdo Tremolada, Conflict between Intelle ctual Property Rights 
and Human Rights : A Case Study on Intangible Cultural Heritag e, 94 OREGON LAW REVIEW. 
125, 125-78 (2015) [hereinafter FARAH & TREMOLADA, CONFLICT BETWEEN IJl."I'ELLECTt;AL 
PROPERTY RIGHTS AND HUMAN R IGHTS); P ao lo D . Farah & Riccardo Tremolada Diritti di 
Proprieta Intel lettual e, Diritt i Uman i e Patrimonio Culturale Immaterial e, 2 RMSTA DI 
DIRITTO INDUSTRIALE. 21, 21- 47 (2014 ) [hereinafter FARAH & TREMOLADA]. 

195 H UNT, supra not e 193 , at 35. 
196 Koen De Feyter , Introdu ction to ECONOMIC GLOBALISATION AND H UMAN RIGHTS: 

EIUC STUDIES ON H UMAN RIGHTS AND DEMOCRATIZATION 1, 7-8 (Wolfgang Benedek Koen 
De Feyter & Fabrizio Marrella eds. , 2007). ' 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 91 

resources to provide adequate protection for their workers. 197 However, 
we cannot overlook the fact that globalization and increased trade may 
improve conditions for a larger share of the population to come out of 
poverty. In this way, globalization may improve human welfare and 
indirectly create the basis for the formation of a middle class that, after 
having reached an independent economic status and achieving a degree 
of stability, will demand political freedoms.198 

As described above, trade liberalization has been criticized for its 
emphasis on economic outcomes and GDP growth at the expense of 
human rights and other societal values. 199 The WTO is accused of having, 
among the provisions of the Agreements, requirements that may conflict 
with a State's human rights obligations and societal objectives, while 
limiting the ability of WTO Members to retaliate against other States for 
breaching human rights obligations through the use of trade sanctions. 200 
In addition, the elimination of quantitative restrictions and the 
application of non-discrimination principles between domestic and 
imported products might encourage States to boost the competitiveness 
of their own industries by adopting new laws and regulations for limiting 
or watering down human rights, such as the labor rights of workers 
permitting private companies to apply for new contractual conditions that 
reduce the minimum wage or other rights. 201 Nevertheless, defenders of 
the WTO state explicitly that the rationale behind the WTO approach is 
that, in cases of human rights violations, trade sanctions may conceal a 
disguised form of protectionism where the measure taken strictly for 
protectionism purposes is not motivated by human rights concerns. 202 
Furthermore, the WTO would govern trade and not issues such as human 
rights, and some of them even argue that the WTO indirectly promotes 
human rights through stimulation of trade and an improved global 
governance of international trade and international economic law, not to 
mention that the substantive rules and practices of the organization are 
increasingly incorporating human rights issues within their 
framework. 203 

As a matter of fact, Article XX of the GATT allows human rights 
protection through its general exceptions for measures necessary to 
protect public morals (XX(a)), to protect human life (XX(b)), and for 

197 Id. at 7-8. 
198 Jessica M. Karbowski, Grocery Store Activism: A WTO Compliant Means to 

Incentivize Social Responsibility, 49 VA. J. INT'L L. 727, 734 (2009). 
199 Rebecca Bates, The Trade in Water Services: How Does GATS Apply to the Water 

and Sanitation Services Sector?, 31 SYDNEYL. REV. 121, 133-35 (2009). 
200 Karbowski, supra note 198, at 734-35. 
201 SARAH JOSEPH, BLAME IT ON THE WTO?: A HUMAN RIGHTS CRITIQUE 3-4 (2013). 
202 Michael J. Trebilcock, Trade Policy and Labour Standards: Objectives, Instruments 

and Institutions 18-24 (Law and Economics Research Paper NO. 02-01, Faculty of Law, 
University of Toronto, Conference on "International Economic Governance and Non-
Economic Concerns," Vienna, Austria, European Community Studies Association, Dec. 10-
11, 2001). 

203 OLUFEMI AMAO, CORPORATE SOCIAL RESPONSIBILITY, HUMAN RIGHTS AND THE LAW: 
MULTINATIONAL CORPORATIONS IN DEVELOPING COUNTRIES 218-19 (2011). 



92 COLUMBIA JO URNAL OF ASIAN L AW [Vol. 30:51 

measures relating to the product s of prison labor (XX(e)). 204 Article XX(g) 
is primarily an economic and environmental provision since it r elat es to 
natural resources , but it ha s human rights ramifications in some 
circumstances.2os Moreover , Articl e XX(a), XX{b), and XX(e) require that 
a measure satisfy the "ne cessity'' test t o justify non-economic objectives, 
which implies that trade is s ues are prioritized over other objectives. 206 

The jurisprudence of the Panel and Appellate B ody in severa l WTO cases 
related to either environmental or h ealth concerns, such as the US-
Shrimp case, 207 highlights the fact that Article XX offers a significant 
mechanism , and room for State sovere ignt y, for justifying discriminatory 
treatment to respond to measur es from other Member States that affect 
NTCs . It was shown through th e US-Shrimp case that Article XX imposes 
limitations on the use of trade measures for non-trade policy purposes, 
but those measures may find ju stification under Article XX. 208 Yet, 
Member States have rarely mention e d the r eference to human rights in 
their petitions or arguments deve lop ed before the WTO, and they are not 
present in the Panel or App ellate Bod y findings. 209 This is due to the 
restrictive interpretation of Articl e XX applied in the Panels' decisions 
and reasoning based on their views about the very deep meaning and 
purposes of the GATT , while the Appellate Body's decisions regarding 
Article XX show that an exception, in par ticular a general exce pti on like 
the ones included in Article XX, sho uld be treated like any other treaty 
provision which must be interpreted according to its terms, context, a nd 
in light of the core object and purpose of su ch a treaty.210 

Furthermore , the GATT 1979 Agreement on Technical Barriers to 
Trade, 211 also called Tokyo Round Standards Code, adopted the notion of 

204 
SARAH H. CLEVELAND, Human Rights Sa11ctions a11d the World Trade Organisation, 

in ENVIRONMENT, H UMAN RIGHTS Al\'!) Il\"TER.'-ATIO:-;AL TRADE 199, 233 (Francesco 
Francioni ed., 2001). 

206 
ADAM MCBETH, Il\"TERNATIONAL ECONOMIC ACTORS A.'© Hl I~lAX RIGHTS 119 (2011). 

206 AMAO, supra note 203 , at 224. 
207 Pan el Report, United States - Import Prohibition of Certain Shrimp and Shrimp 

Products, WTO Doc. WT/DS58/RW (June 15, 2001); Appellate Body Report, United States 
· Import Prohibition of Certain Shrimp and Shrimp Products, \\'TO Doc. \\'T/DS58/AB/R 
(Oct. 12, 1998); Panel Report, United St.ates - Import Prohibition of Certain Shrimp and 
Shrimp Products, Recourse to Article 2 1.5 of the DSU by Malaysia, WT/DS58/AB/RW (Oct. 
22, 2001); Appellate Body Report, United States - I mport Prohibition of Certain Shrimp and 
Shrimp Products Recourse to Article 2 1.5 of The DSU by Malaysia, \\'TO Doc. 
WT/DS58 /AB/RW (Oct. 22, 2001) . 

20a ANTHONY CASSIMATIS, Hl .TMA.'\ RIGHTS RELATED TRADE ~lEAsL'RES l:XDER 
INTERNATIONAL LAW 336 (2007). 

200 
NIELS BEISINGHOFF, CORPORATIONS AND HL~lAN RIGHTS: A..-...; AXALYSIS OF ATCA 

LITIGATION AGAINST CORPORATIONS 57 (2009 ). 
• 

210 
ANDREW NEWCOMBE, General Exceptions in International Im·estments Agreements, 

m SU~AINABLE DEVELOPMENT IN WORLD INVESTMENT LAw 351, 363-61 (Ma ri e-Claire 
Cordonier Seg ger , Markus W. Gehring & Andrew Paul Newcomb eds. 2010). 

211 
At the end of the Tokyo Round in 1979 , after several years ofn~gotiat ion s since year 

1947, 32 GATT Contracting Parties signed th e plurilateral Agreement on Techn ical 
Barriers to Trade (TBT) whi ch wa s cal led the Tokyo Round Stan dard s Code. It s provisions 
were further expanded thr oug h the adoption of the TPB Agreement in 1995 with the 
creation ~f the \\<'TO. See_ Technical Barriers to Trade: Technical Explanation, Technical 
Information on Technical Barriers to Trade, WORLD TRADE ORGA.'\1:ZATIOX, 



2016] TRADE AND PROGRESS: THE CASE OF CmNA 93 

Non-Product-Related (NPR) Process and Production Methods (PPM). The 
NPR PPM requirements refer to measures that target the production 
methods of goods , starting from the consideration that not all the 
processes are in themselves equivalent in terms of the societal effects to 
obtain a specific final product. 212 PPM measures are divided into two 
categories: Product-Related measures that may have detectable and 
identifiable leftovers in the final product and Non -Product Related 
measures that do not have any visible or verifiable leftovers in the final 
product, but may still have effects beyond the product itself. 213 The GATT 
1947 and WTO Panel and Appellate Body reports have not adopted any 
cases with a leading ruling , which clarified in a definitive or at least clear 
way the treatment to be granted to the NPR PPMs under general trade 
lib eraliza tion rules. 214 Nevertheless, it appears that exceptions in GATT 
Article XX have the capacity to protect unilateral NPR PPM measures as 
the Tuna/Dolphin Case II of 2011 ("Dolphin-Safe" Labeling), where 
consumers' choice was based on the method of production rather than the 
product itself, as previously showed. 215 The further relevant step in this 
legal reasoning is the application of the NPR PPMs to human rights 
issues. It has to be highlighted that the Panel and Appellate Body cases 
have developed and clarified the conditions for evaluating the "likeness" 
of two products through the use of the four criteria analysis (set by the 
Border Tax Adjustments) which do not need to be cumulative: (i) the 
properties , nature , and quality of the products; (ii) the end -uses of the 
products; (iii) consumers ' tastes and habits - more comprehensively 
termed consumers' perceptions and behaviors-in respect of the products; 
and (iv) the tariff classification of the products. 216 If the NPR PP Ms would 
become, for example, a fifth criteria in this list, it would be more likely 
for countries to adopt trade-related human rights measures despite their 

http s://www.wto.org/eog lish/tratop _e/t bt _e/t bt_info_e .htm. 
212 OECD , PROCESSES AND PRODUCTION METHODS (PPMS): CONCEPTUAL FRAMEWORK 

AI-ID CONSIDERATIONS ON USE OF PPM-BASED TRADE MEASURES 15-16, OECD Doc No. 
OECD/GD(97)137 (1997), http://www.oecd.org/officialdocumeots/publicdisplaydocumentpdf 
/?cote=OC DE/GD(97) 13 7 &docLanguage= En. 

213 KATERYNA HOLZER, CARBON-RELATED BORDER ADJUSTMENT AND WTO LAW 93 
(2014). 

2H lLoNA CHEYNE, Consumer Labelling in EU and WTO Law, in LIBERALISING TRADE 
IN THE EU AND THE WTO: A LEGAL COMPARISON 309, 319 (Birgitte Egelund Olsen, Karsten 
Engsig & Sanford E. Gaines S0rensen eds., 2014). 

210 Id. See also Panel Report, United States - Measures Concerning the Importation , 
Marketing and Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/R (Sept. 11, 2011); 
Panel Report, United States - Measures Concerning the Importation, Marketing and Sale of 
Tuna and Tuna Products, Recourse to Article 21.5 of the DSU by Mexico, WTO Doc. 
WT/DS381/RW (Apr . 14, 2015). 

21sAppellate Body Report, European Communities - Measur es Affecting Asbestos and 
Asbestos-Containing Products, supra note 138, at 101. See also Panel Report , Japan - Taxes 
on Alcoholic Beverages ("Japan -Al coholic Beverages'?, WTO Doc. WTIDSBIR, WTIDSlOIR, 
WT/DSll/R, (adopted 1 November 1996, as modified by the Appellate Body Report, WTO 
Doc. WTIDSBIABIR, WTIDSlOIABIR, WT/DSll/AB/R); Appellate Body Report, Japan -
Alcoholic Beverages, WTO Doc. WTIDSBIABIR, WTIDSlOIABIR, WTIDSlllABIR (adopted 1 
November 1996). 



94 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

inconsistency with the WTO system, because these measures would be 
covered under Article XX. 

Additionally, another subject that remains unsolved and highly 
relevant for NTCs is the concept of extraterritoriality that we already 
examined in this paper; however , we focused our reasoning and 
evaluation on environmental concerns, when we compared the United 
States - Tuna and Tuna Products from Canada case, 217 the 
Tuna/Dolphin Case I 21s and the Tuna/Dolphin Case II of 2011 
("Dolphin-Safe").219 In those cases, this issue was gradually addressed 
with an evolution that started in the first two disputes with a very narrow 
interpretation stating that a given State 's regulations cannot be enforced 
in another State's jurisdiction on the basis of international trade rules 
under the auspices of the expectations of Article XX (b, g). In the last 
dispute, which was actually adopted after the creation of the WTO and 
inclusion of the WTO Preamble, the interpretation favored measures that 
have the sole objective of protecting the environment and promoting 
sustainable development. Whether this last interpretation of the 
extraterritoriality principles will be consistently applied to trade 
measures adopted for the protection of human rights or other areas of 
NTCs in the future remains to be seen. 220 

Along with Article XX, Article XXI(c) provides proof of the 
willingness to consider human rights concerns when the WTO assesses 
compliance with trade measures. Article XXI(c) states the following: 
"Nothing in this Agreement shall be construed [ ... ) (c) to prevent any 
contracting party from taking any action in pursuance of its obligations 
under the United Nations Charter for the maintenance of international 
peace and security." 221 Likewise, the Panels and the Appellate Body have 
made use of general principles of international law to support their 
interpretations based on the ordinary meaning of the terms of the WTO 
Agreement as was proved in the US-Standards for Reformulated 
Gasoline and Conventional Gasoline 222 where the Appellate Body held 

217 Report of the Panel, United States - Prohib ition of Im ports of Tun.a and Tuna 
Products from Canada, U5198 - 29S/91, 4.10 - 4.12 (Feb. 27, 1982). 

218 Report of the Panel, United States - Restrictions on Imports of Tuna, 45, DS21/R 
(Sep. 3, 1991). 

219 P!lnel Report , United States - Measures Concerning the Importat ion, Mark eting and 
Sale of Tuna and Tuna Products, WTO Doc. WT/DS381/R (Sept. 11, 2011); Appellate Body 
Report, United States - Measures Concerning the Importation , Marketing and Sale of Tuna 
and Tun.a Products, WTO Doc. WT/DS381/AB/R (May 16, 2012 ); Panel Report, United States 
- Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products 
Recourse to Article 21.5 of the DSU by Mexico, WTO Doc. WT/DS381/RW (Apr. 14, 2015). ' 

220 SANDRA L. WALKER, ENVIRONMENTAL PROTECTION VERSUS TRADE LIBERALIZATIOK: 
FINDING THE BALANCE: AN EXAMINATION OF THE LEGALITY OF ENVIRONMENTAL 
REGULATION UNDER INTERNATIONAL TRADE LAW REGIMES 97-98 (1993). 

221 General A~re~me nt on Tariffs and Trade , art. XXI, Apr. 15, 1994, Marrakesh 
Agreement Establishing the World Trade Organization, Annex IA, 1867 U.N .T.S. 187 
[hereinafter GATT 1994]. 

Panel Report, United States · Standards for Reformulated and Conventional 
Gasoline, WT/DS2/R (Jan. ~9, 1996); Appellate Body Report, United Stat es . Standards for 
Reformulated and Conventional Gasoline, WT/DS2/9 (May 20, 1996). 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 95 

that the WTO agreement should not be read in "clinical isolation from 
Public International Law ".223 

The above-mentioned matters create additional challenges for the 
WTO legal system that strives for trade openness, however , while taking 
NTCs into consideration. If the WTO succeeds in fully integrating human 
rights issues into the system through the adoption of further provisions 
in the WTO Agreements and/or thanks to a more straightforward and 
solid case law , it would constitute a further tool to protect and guarantee 
human rights even when trade is concerned, recognizing the existing (and 
necessary) interdependence between the two systems. As a matter of fact, 
a completely different analysis should be dedicated to the indirect impact 
that accession to the WTO may produce in terms of domestic legal reforms 
of the WTO acceding Member States, including new regulations that 
would strengthen the protection of human rights. It has to be noted that 
following China's accession to the WTO in 2001 , the 10th National 
People's Congress (NPC) at its 2nd Session on March 14, 2004, approved 
important amendments to the Chinese Constitution 224 relevant to the 
discussion. While the WTO accession was not the sole reason for this 
move toward reforms, it is to be noted that several internal political 
concerns played an essential role in fastening and creating the political 
consensus for the adoption of those amendments in the Chinese 
Constitution, even as an internal response to WTO membership and 
consequent liberalization. 

The more leftist intellectuals in China sharply contested China's 
WTO accession because of the impact it would have had on a country that 
still describes itself in Article 1 of its Constitution as "a socialist State 
under the People's democratic dictatorship led by the working class and 
based on the alliance of workers and peasants". Those intellectuals 
considered globalization, free-trade, and lib era listic principles, which are 
intrinsic parts of the WTO, to be disruptive for the interests of the 
Chinese people. 

Ifwe carefully analyze the amendments to the Chinese Constitution, 
we can find many relevant and interesting changes. In particular, a third 
paragraph has been added to Article 33: "The State respects and 
preserves human rights." After the adoption of this amendment, the 
question which arose was whether the Chinese Government would take 
actions and implement reforms to respect the spirit of the law or whether 
Article 33 would remain hollow. It seems that the Labor Contract Law of 
the People's Republic of China, 225 which went into effect on 1 January 
2008, is one of the first relevant consequences of the human rights 

223 CHJEK-HUEI WU, WTO A.~D THE GREATER CHINA: ECONOMIC INTEGRATION AND 
DISPUTE RESOLUTION 99 (20 12). 

221 XIA.~FA (1982) (China). See also Chen Jianfu, The Revision of the Constitution in the 
PRC 53 CHINA PERSPECTIVES. 1, 4-9 (2004). 

'=zhonghua Renmin Gongheguo Laodong Hetong Fa (lfl~.Aa'l:.iH!lOO~z.lJ~/5.1$) 
[Labor Contract Law of the People's Republic of China] (promulgated by the Standing 
Comm. Nat'! People's Cong., June 29, 2007, effective Jan. 1, 2008, amended Dec. 28, 2012). 



96 COLUMBIA JOUR NAL OF ASIAN LAW [Vol. 30:51 

amendment to implement the Chinese Constitution in the Chinese legal 
system, followed by the Law of the People's Republi c of China on the 
Prevention and Control of Occupational Diseases 226 and by the Work 
Safety Law of the People's Republic of China. 221 Then , it is also significant 
to highlight the clear reference in the Chinese Constitution to the 
protection of private property ("Citizens' lawful private property is 
inviolable")228 and the obligation to compensate in case of expropriation 
or requisition.229 Furthermore, the second paragraph of Article 11 of the 
Chinese Constitution states that the "State protects the lawful rights and 
interests of the non-public sectors of the economy such as the individual 
and private sectors of the economy. The State encourages, supports and 
guides the development of the non-public sectors of the economy and, in 
accordance with law, exercises supervision and control over the non-
public sectors of the economy." 230 A fourth paragraph was added to Article 
14: "The State establishes a sound social security system compatible with 
the level of economic development. " This article further develops the 
meaning of Article 33 of "the respect and preservation of human rights" 
calling for a concrete change in the lives of Chinese citizens by 
establishing a "sound social security system." The Chinese Government 
has adopted several different laws to implement this principle in the 
Chinese legal system like the Law of the People's Republic of China on 
Protection of the Rights and Interests of the Elderly,23 1 the Mental Health 
Law of the People's Republic of China, 232 and, to a certain extent, also the 
Resolution of the Standing Committee of the National People 's Congress 
on Adjusting and Improving the Family Planning Policy. Of course, 
beyond the letter of all these laws and regulations , the Chinese 
authorities and officials need to effectively implement the spirit of these 
laws in day-to-day practice to meet the relevant and overreaching 
objectives to improve the Chinese population's quality of life. 

Having taken into consideration all these issues, in the author's 
opinion, the WTO has indirectly contributed to these Chinese legal 
reforms, which better protect the rights of Chinese workers and citizens 

226 Zhonghua Renmin Gongheguo Zhiyebing Fangzhi Fa (' l'~,1,J(HUll~l!R!ll/Jjijl-lJijg$) 
[Law of the People's Republic of China on the Prevention and Treatment of Occupational 
Diseases] (promulgated by the Standing Comm. Nat'l People's Cong., Oct. 27, 2001, 
amended Dec. 31, 2011) . 

227 Zhonghua Renmin Gongheguo Anquan Shengchan Fa ('l1$.AB1:ill:lo00'.tc~1:.PW) 
[Work Safety Law of the People 's Republic of China] (promulgated by the Standing Co=. 
Nat'l People's Cong., June 29, 2002, amended Aug . 27, 2009). 

228 XIANFA art. 13 (1982) (China). 
229 Id. 
230 Id. art. 11. 
231 Zhongbua Remin Gongheguo Laonian Ren Quanyi Baozhang Fa (2012 N., 

Xiiiding) ('P$.A.~~~~:g$.A~!H~l!l$(2012 "¥*iT)) [Law of the People' Re bli
18

nf 
Chin P t . f h R. s pu co 

a_ on rotec 10n o t e 1ghts and Interests of the Elderly] (Promul ated bv the 
Standmg Comm. Nat'l People's Cong., Dec. 28 , 2012). g • 

232 Zhonghu a Renmin Gongheg~6 Jingshen Weisheng Fa" ('1'$.A.~~~~-~TI!:1:$) 
[Mental Health Law of the Peoples Republic of China] (Promulg ted b th St di 
Comm. Nat'I People's Cong.,_June 26, 2012 , effective May 1, 2013 ). a y e an ng 



2016] TRADE AND PROGRESS: THE CASE OF CmNA 97 

as a whole and balance the effects that globalization and free trade would 
have brought in the Chinese internal legal system. In sum, when the link 
between trade and human rights is taken into account, we need to 
carefully evaluate, from a comparative law perspective, the new Member 
States' internal legal reforms to protect human rights, following their 
WTO accession, and not only those reforms that are specifically addressed 
by the WTO Agreements and practice. 

4. Guaranteeing Food Security at the National Level while Embracing 
International Trade Regulations 

The United Nations established the Food and Agriculture 
Organization (F AO) in 1945 as a specialized agency during the First 
Session of the F AO Conference held in Quebec City, Canada. The F AO is 
certainly the international organization designed to cover most of the 
issues related to food security, food safety, and agricultural products, but 
the relations and conflicting areas among these relevant issues and 
international trade regulations are quite evident . Since GATT 1947, 
NTCs have been included in agriculture trade policy and negotiations, 
mainly for the important role they play in this specific field for the 
national security and stability of the countries. During the ongoing 
negotiations and in particular during the Uruguay Round, this definition 
has evolved such that the NTCs include "food security, food safety and 
quality, rural development and animal welfare". 233 Food security 
emerged as a NTC that shall be taken into account in the reform of 
agricultural trade. 234 Food security was, for the first time, defined at the 
global level during the 1974 World Food Summit as the "availability at 
all times of adequate world food supplies of basic foodstuffs to sustain a 
steady expansion of food consumption and to offset fluctuations in 
production and prices." 235 This definition gives us the idea that when the 
issue started to appear as a global concern, States mainly considered food 
security in terms of volume and stability of food supplies. Throughout the 
years , this concept has evolved and has been redefined at various World 
Summits, Conferences, and FAO Reports such as those in 1983, 1996, and 
2001 236 and reports from other International Organizations and fora, 
such as the 1986 World Bank (WB) Report on "Poverty and Hunger" 237 

233 Simpson & Schoenbaum, supra note 25, at 402. 
~• MICHAEL BLAKENEY, INTELLECTUAL PROPERTY RIGHTS AND FOOD SECURITY 10 

(2009). 
236 World Food Conference, Rome, Nov. 5-16, 1974, Report of the World Food 

Conference, U.N. Doc. E/CONF.65/20. 
236 Director General of the FAO, World Food Security: A Reappraisal of the Concepts 

and Approaches' CFS 83/4, Rome, 1983; World Food Summit , Nov. 13-17, 1996, Rome 
Declaration on World Food Security and World Food Summit Plan of Action, WFS 96/REP 
Part One , Rome, 1986.; Food and Agriculture Organization, The State of Food Insecurity in 
the World 2001, Rome, 2002. 

237 WORLD BANK, POVERTY AND HUNGER: ISSUES AND OPTIONS FOR FOOD SECURITY IN 
DEVELOPING COUNTRIES (1986), http://documents.worldbank.org/curated/en/16633146799 
0005748/Poverty-and-hunger-issues-and-options-for-food-security-in-developing-countries. 



98 COL UMBIA J OURNAL OF ASIAN L AW [Vol. 30:51 

and the 1994 United Nations Development Pr ogram (UND P) Human 
Development Report,2 38 including a definiti on of food security as "access 
to vulnerable people ," with attention to the relevant diHerences between 
chronic and temporary food in sec urity connected to natur al disasters and 
armed conflicts. This characterization ha s expa nd ed to also cover the 
need of food safety and better quality of food in te rm s of nutritional 
balance . The link between food security and food safety became a focal 
point to construct so-called "human secur it y". 239 

The definition adopted in Rom e in 2001 in The State of Food 
Insecurity in the World 2001 gave mor e importance to consumption and 
the right of individuals to have access to food: "Food security [is] a 
situation that exists when all pe ople , at all times, have physical , social 
and economic acce ss to sufficient , sa fe and nutriti ous food that meets 
their dietary needs and food preferences for an active and healthy life." 240 

On a different level, national food security was described as the 
"ability of a country to secure an adequate total supp ly of food to meet the 
nutritional needs of its population at all times , through domestic 
production , food imports and/or the temporary use of national food 
stocks." 241 We are living in a more and m ore in terconnected world, but 
each Nation State needs to attain or pre serve food security for its 
population within its borders as independ ently as possible from exter nal 
intervention or even, in certain circumstances , a foreign country's efforts 
to protect its national security and sovereignty. 242 In order to achieve a 
sufficient level of independence , governments need to have a clear food 
security plan, in particular with a balanc e among internal production, 
food reserves, and availability for the most vulnerable people. 243 

The concept of national sovereignty in the food security field is also 
very aligned with the principle s and objectives of sustaina ble 
development. If a country is able to produce in ternally what it needs to 
satisfy the subsistence rights of its popula tion, it a lso means less use of 
transportation to transfer good s from one country to another and less 
impact and consequences for the environment and climate change. 

Unfortunately, we do not live in a perfect world , but rather in one 

238 UNITED NATIONS DEVELOPMENT P ROGRAMME, HUMAN DEVELOPMENT REPORT 1994 
(1994), http: //hdr.undp.org /s it es/defa u1Ufiles/re p orts/255/hdr _ l994_en_complete_nostats . 
pdf. 

239 Id. See also P atr icia Bennard, Improving the Nutrition Impa cts of Agriculture 
Int ervent ions: Strategy and Policy Brief 6 (Foo d and Nutrit ion Technical Assistance Project 
200~ )- Carmen G. Go~zalez, Institutionalizing Inequality: The WTO Agreement on 
Agriculture, Food Security, and Developing Countries , 27 COUJM. J. ENVTL. L. 431 466-67 
(2002). ' 

24° FAQ, THE STATE OF FOOD INSECURITY IN THE WORLD 2001 (2002). 
w FAQ, REPORT OF THE EXPERT CONSULTATION ON INTERNATIONAL FISH TRADE AND 

FOOD SECURITY 65 (2003) . 
242 GEORGE KENT, FREEDOM FROM WANT: THE HUMAN RIGHT TO ADEQUATE FOOD 200 

(2005). 
243 V.P. Raghavan, Food Security Concern for Ind ia under WTO Regime: An Anal sis 

in WTO, INDIA, AND EMERGING AREAs OF TRADE: CHALLENGES AND STRATEGIES, 95, 9: (P: 
Rameshan ed., 2008). 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 99 

with incredible disharmonies and conflicting interests in which the lack 
of truly enlightened global governance means that most actions have not 
been based on global justice and sustainable development. Many 
sovereign States are not able to produce independently what they need 
or, even when they could, are not able to fully exercise their own 
decisions. Free trade, liberalism, and neo-liberal economic reforms have 
certainly improved the situation in many developing countries, reducing 
poverty and increasing wealth for quite some time and for a growing part 
of the population. However, too much room has been given merely to 
"economics ," and the lack of robust laws and regulations to balance 
economic analysis and objectives with sustainable development2 44 has 
left the global governance, and indirectly the decision making process, in 
the hands of a handful of multinational companies or, even worse , groups 
that exercise control beyond the borders, operating without any 
transparent legal identity . 

Most multinational corporations are not interested in sovereignty, 
national security, and food security issues other than to protect and profit 
from their business investments. Actually, they benefit from the 
fragmentation of international law, 245 and they operate more easily in 
countries where the rules are less stringent, generally in developing 
countries. 246 The limited presence of laws and regulations eases the 
environment for corporations because they can operate more freely. 
Multinational corporations are generally profit -driven and may 
implement their objectives more thoroughly when deep liberalism is 
adopted, which gives individuals and private initiatives wide latitude as 
opposed to the invasive involvement of the State . However, it is now clear 
that strong liberalist principles do not create a fairer world on their own, 
but they risk facilitating a world ruled by unelected, authoritarian, and 
profit-driven (opposed to human development oriented) organizations 
such as some (not all) multinationals. They do what they are supposed to 
do to make a profit and otherwise benefit their shareholders. It is not 
formally and institutionally their role to auto -regulate their actions if 
they are not requested to do so or if the rules of the game do not directly 

rn Regarding the risks posed by neoliberalism for food security and sustainable 
dev elop ment , see Carmen G. Gonzalez, Trade Liberalization, Food Security and the 
En vironment : The Neoliberal Threat to Sustainable Rural Development, 14 TRANSNAT'L L. 
& CONTEMP. PROBS. 419, 465-69 (2004). 

us On the fragmentation of international law , see PATRICK DAILLIER & ALAIN PELLET, 
DROIT INTERNATIONAL PUBLIC 642-728 (7d ed. 2002); MIREILLE DELMAS-MARTY, LES 
FORCES lMAGINANTES Du DROIT (II). LE PLURALISME ORDONNE 7-8 (2006) ("Ce qui domine 
le paysage, loin de l'ordre juridique au sens traditionnel , c'est le grand desordre d'un monde 
tout a la fois fragmente a l'exces , comme disloque par une mondialisation anarchique, et 
trop unifie, voire uniformise par !'integration hegemonique qui se realise simultaneament 
dans le silente du marche et le fracas des armes.") See also Francis Snyder, Governing 
Economic Globalisation: Global Legal Pluralism and European Law, 5 EUR. L. J. 334, 334-
35 (1999). / 

2,s Lallrence Boy , Le Deci(it Democratique de la Mondialisation du Droit Economique 
et le Role de la Societe Civile, 3 REVUE INTERNATIONALE DE DROIT ECONOMIQUE 479-82 
(2003). 



100 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

(laws and regulations) or indirectly (corporate social responsibility· CSR 
and accountability for the good public imagine of the company) impose to 
act accordingly. 247 

Moreover, the view that liberalism has enabled many countries to 
reduce poverty is correct, but at the same time and to a certain extent, it 
is an assumption becau se what has to be examined is at what costs, in 
the long-term, has this wealth been achieved. The negative production 
externalities of industrialization are enormous; the externalities of the 
excesses of globalization, free trade, and neo-liberal thoughts are even 
more dramatic, in terms of loss of quality of life, water and air pollution, 
climate change, environmental risks and natural disasters, health 
probl ems, and new diseases connected to industrialization without 
control and rules . 

Thi s long excursus is essential to highlight the pivotal role that food 
secur ity 24B and food safety may have in the paradigm shift which is 
foreseeable from an import-export oriented model to the need to 
reestablish more locally oriented production. This change would allow 
communities to re-appropri ate contro l of local production including 
cultural components and choice of domestic production and consumption. 
At the same time, this more local community criterion is already being 
adopted from the bottom, within a growing number of societies, through 
civil society involvement in creating new and innovative ways for product 
commercialization like exchanges that allow communities to trade 
without the use of common currency (with the use of alternative currency) 
or like other methods or metrics to measure progress. 

In the author's opinion, achieving food security by establis hing local 
indep enden ce has become increasingly urgent considering the current 
economic crisis, the systemic problems created by the exacerbated import-
export model and a debit and credit system that is not sustainable and 
has brought our society down a dead-end street of defaults, 
unemployment, and social unrest, as seen in the recent examples of 
Argentina and Greece and as the incredible financial turmoil underway 
in China may indicate . 

To try to solve or find constructive solutions to some of the problems 
discu sse d above, in the context of the Doha Development Agenda (DDA), 

217 PATRIZIO MERCW, LES El\'TREPRISES MULTINATIONALES EN DROIT INTERNATIONAL 
37 (1993); FRANCESCO FRANCIONI, lMPRESE MULTINAZIONALI , PROTEZIONE DIPLOMATICA E 
RESPONSABILITA lNTERNAZlONALE 13 (1979); ALBERTO 8A."1"TA MARIA, DIRITTO 
COMMERCIALE COMUNITARIO 245 (2008); ANGELICA BONFANTI , LE lMPRESE 
MULTINAZIONALI TRA RESPONSABILITA E ACCOUNTABILITY NEL DIRITTO lNTERNAZIONALE 
(Doctoral Thesis , U ni versita di Milano, 2007); PIA ACCONCI, Responsabilita Sociale 
d'lmpresa, lmprese Multinazionali e Diritto In ternazionale, in EMILIO o ' ORAZIO LA 
RESPONSABILITA SOCIALE D'IMPRESA: TEORJE, STRUMEJ\i"TI, CASI , POLITEIA, XIX, 72, 71', 71. 
80 (2003); STEFANO ZAMAGNI, L'Impresa Socialment e Responsabile nell'Epoca della 
Globalizzazione, in EMILIO o'ORAZIO, LA RESPONSABILITA SOCIALE D'IMPRESA: TEORIE 
STRUMEmI, CASI, POLITEIA , XIX, 72, 71, 71-80 (2003). ' 

2
18Matias E. Margulis, The World Trade Organisation and Food Secu ·1 A~ th 

Global Food Crises, in LINKING GLOBAL TRADE AND HUMA.'l RIGHTS: NEW PoL7~ SP e~E 
HARD ECONOMIC TIMES 236, 249 (Daniel Drache & Lesley A. Jacobs eds., 20l 4). A 

1
" 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 101 

the European Union promoted the establishment of a "Food Security Box" 
to enhance the trading capacities of developing countries. Among the 
different objectives was a proposal to include special provisions to support 
the agriculture sector. 249 It has been proposed that any future WTO 
Agreement must grant the right to any other WTO Member State to 
produce domestically a certain percentage of agricultural production to 
feed the population. This domestically produced agricultural production 
should also have minimum standards in terms of quantity of calories 
consumed or some other objective quantity and quality measurements 
without any possibility for other countries to forbid these practices. 250 

This measures would be particularly important for developed countries 
to counterbalance the potential strong negative effects of tariff reductions 
on their agricultural sector. 

When it comes to evaluating WTO case law involving food security 
issues, one must immediately look at the EC-Hormones case 251 in which 
the EU imposed a ban on the domestic sale and import of meat or meat 
products from cattle that were treated with six kinds of natura l or 
synthetic hormones for the purpose of growth promotion . The US and 
Canada challenged the measure on the basis of the Agreement on 
Sanitary and Phytosanitary Measures (SPS), 252 while the EU justified it 
on the basis of the precautionary principle .253 The Appellate Body upheld 
the Panel's finding that the EU import prohibition was inconsistent with 
Articles 3.3 and 5.1 of the SPS Agreement, but rejected the Panel's 
interpretation, stating that the requirement that SPS measures be "based 
on" international standards, guidelines or recommendations under 
Article 3.1 is not equivalent to requiring that SPS measures must 
"conform to" such standards. In particular, under Article 3.3 of the SPS 
Agreement, "Members may introduce or maintain sanitary or 
phytosanitary measures which result in a higher level of sanitary or 
phytosanitary protection than would be achieved by measures based on 
the relevant international standards, guidelines or recommendations, if 
there is a scientific justification, or as a consequence of the level of 

219 Michael John Westlake, Addressing Marketing and Processing Constraints that 
Inhibit Agrifood Exports a Guide for Policy Analysts and Planners, FAO AGRICULTURAL 
SERVICES BULLETIN No. 160, at 12 (2005), http://ucanr.edu/datastoreFiles/234 -2088.pdf. 

2SO Simpson & Schoenbaum, supra note 25, at 406-08. 
:ia , Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones) 

Complaint by the United States, WTO Doc. WT/DS26/R/USA (Aug. 18, 1997); Appellate Body 
Report, EC . Measures Concerning Meat and Meat Products (Hormones), WTO Doc. 
WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998). 

2s2 World Trade Organization, Understanding the WTO Agreement on Sanitary and 
Phytosanitary Measw·es, WORLD TRADE ORGANIZATION, (MAY 1998), 
https://www.wto.org/english/tratop_e/sps_e/spsund_e.htm (last visited May 23, 2017). 

2.53 This principle means that precautionary action must be taken before scientific 
certainty of cause and effect is established. See Lucy Emerton et al., Economics, the 
Precautionary Principle and Natural R_esource Management: Key Issues, Tools and 
Practices, in BIODIVERSITY AND THE PRECAUTIONARY PRINCIPLE: RISK, UNCERTAINTY AND 
PRACTICE TN CONSERVATION AND SUSTAINABLE USE 253, 253-254 (Rosie Cooney, Barney 
Dickson & FAUNA FLORA INTERNATIONAL eds., 2005). 



102 COLUMBIA J OURNAL OF ASIAN LAW [Vol. 30:51 

sanitary or phytosanitary protection a Member determines to be 
appropriate in accordance with the relevant provisions of paragraphs 1 
through 8 of Article 5." According to Article 5.1, ''Members shall ens ure 
that their sanitary or phytosanitary measures are based on an 
assessment, as appropriate to the circ um stances, of the risks to human, 
animal or plant life or health, taking into account risk assess ment 
techniques developed by the relevant international organizations." Both 
the Panel and the Appellate Body sta t ed that the EU measures did not 
comply with the WTO Agreements be cause t h e EU measures were not 
based on a risk assessment a s required under Articles 5.1 and 5.2 of the 
SPS Agreement in order to prove its claims; 254 however , the Appellate 
Body reversed the Panel's finding where it stated that Article 5.1 requires 
that there shou ld be a "r ati onal relationship " between the measure at 
issue and the risk assessment. 255 

It is relevant to note that the Appellate Body had also reversed the 
Panel's finding that the EU import prohibition was inconsistent with 
Articles 3.1 and 5.5 of the SPS Agreement because , as stated by the 
Appellate Body, the EU measure did n ot apply arbitrary or unjustifiable 
treatments and differences in prot ection levels in respect of added 
hormone s in treated meat and natur a lly-occurring hormones in food.256 

In fact, the Appellate Body found that the EU demonstrated enough 
evidence that there were genuine anxieties concerning the safety of those 
added hormones in treated meat instead of the naturally-occurring 
hormones in food; 257 that the ne cessity for h armonizing the internal 
regulations of its Member State s was part of the effort and mandate to 
establish a common internal mark et for beef; 258 and that the Panel's 
finding was not supported by the "architectur e and structure" of the 
measure s to consider them in violation of the WTO. Furthermore, the 
Appellate Body clarified that the SPS Agreement does not allocate the 
"evi dentiary burden " on the WTO Memb er State imposing the SPS 
measure. 

The Appellate Body's reversal s of the Pan el's finding and its related 
reasoning clearly demonstrate to WTO Member States h ow to design 
their policies in a way that is justifiable under the provisions of the SPS 
Agreement . 

Following the Appellate Body ruling in 1998 , the EU Commission 
funded 17 scientific studies concerning the impa ct that hormone residue s 

254 Veena Jha, Enuironmetal and Health Regulations, in ENVIRONMENTAL REGULATION 
AND FOOD SAFETY: STUDIES OF PROTECTION AND PROTECTIONISM 14 19 tueena Jha ed. w~. . . ,. 

250 Mitsuo Mat sushita , WTO Dispute Cases Relating to Food Safety I ssues in TRADE 
DISPUTE S AND THE DIS PUTE SETTLEMENT UNDERSTANDING OF THE \VTO: AN 
lNTERDISCIPLh'<ARY AssESSMENT 283, 288 (James C. H rt· H "d Bel di & K Ch . eds., 2009 ). a 1gan, am 1 a wan 01 

266 
Appellate Body Report , EC · Measures Concerning Meat and Meat Products 

(Hor:~;;~), 'II 2 19-226 , WTO Doc. WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) .. 

~ 8 Id. 245-46. 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 103 

in meat have on human health .259 In this dispute, the GATT and the WTO 
were unable to achieve compliance since the EU maintained the ban, 260 
but the ruling discouraged other WTO Members from banning the 
hormones in question.261 

Another relevant case for our analysis is Japan - Measures Affecting 
Agricultural Products. 262 In this case, the WTO Panel and Appellate Body 
respectively found the Japanese Government's requirement to test and 
confirm the efficacy of a particular quarantine treatment for each variety 
of eight agricu ltur e products coming from the US to be inconsistent with 
the SPS Agreement. 263 The US challenged the Japanese restrictions on 
imports of apples, cherries, peaches (including) nectarines, walnuts, 
apricots, pears, plums, and quince in order to prevent the infestation of 
Japanese orchards with the parasitic codling moth, an insect that can 
damage fruits. 264 In such a case, the Member State must be able to show 
a "rational or objective relationship" between the SPS measure and the 
scientific evidence, 265 which was unsuccessful and thus the measures had 
to be eliminated. 266 The Appellate Body upheld the Panel's finding under 
Article 5. 7 according to the fact that a measure may be provisionally 
adopted in respect of a situation where relevant scientific information is 
insufficient and on the basis of available pertinent information, and may 
be maintained so long as the Member which adopted the measure "seek[s] 
to obtain the additional information necessary for a more objective 
assessment of risk" and "review[s] the [ ... ] measure accordingly within a 
reasonable period of time". 2s7 

The EC - Approval and Marketing of Biotech Products 268 dispute 
concerns two distinct matters: (1) the operation and application by the 
European Union (formerly EC - European Communities) of its regime for 
the approval of biotech products, and (2) certain measures adopted and 
maintained by EU Member States prohibiting or restricting the 
marketing of biotech products. 'Biotech products' in this dispute refers to 

2oa Bernard Hoekman & Joel Trachtman, Continued Suspense: EC-Hormones and WTO 
disciplines on Descrimination and Domestic Regulation, in THE WTO CASE LAW OF 2008, 
151, 157 (Henrik Horn & Petros C. Mavroidis eds., 2010). 

260 For further information please see supra note 256 at proceedings under Article 22 
of the DSU (remedies), https://www.wto.org/english/tratop_e/dispu_e/dsu_e.htm 

261 CHARAN DEVEREAUX, ROBERT Z. LAWRENCE & MICHAEL D. WATKINS, CASE STUDIES 
IN US TRADE NEGOTIATION, VOLUME 2: RESOLVING DISPUTES 83 (2006). 

262 Panel Report, Japan - Measures Affecting Agriwltural Products, WTO Doc. 
WT/DS76/R (Oct. 27, 1998); Appellate Body Report, Japan - Measures Affecting 
Agri cultural Products, WTO Doc. WT/DS76/AB/R (Feb. 22, 1999). 

263 CATHERINE BUTTON, THE POWER TO PROTECT: TRADE, HEALTH AND UNCERTAINTY 
IN THE WTO 5 (2004). 

264 SCHEFER, supra note 112, at 199. 
265 Appellate Body Report, Japan - Measures Affecting Agricultural Products, 79-85, 

WTO Doc. WT/DS76/AB/R (Feb. 22, 1999). 
266 /d. '1186-91; EPPS, supra note 143, at 233. 
267 TERRY MARSDEN et al. , THE NEW REGULATION AND GOVERNANCE OF FOOD: BEYOND 

THE FOOD CRISIS? 250 (2012). 
268 Panel Report, European Communities - Measures Affecting the Approval and 

Marketing of Biotech Products, WTO Doc. WT/DS291/R (Sep. 29, 2006). 



104 COLUMBIA JOURNAL OF ASIAN LAW [Vol. 30:51 

plant cultivars that have been developed through recombinant 
deoxyribonucleic acid (recombinant DNA) technology. The European 
Union adopted a regime to control the release into the environmen~ of 
genetically modified organisms and to conduct a case-by-case evaluation 
of the potential risks biotech products may hav e with the objective of 
protecting human health and the environment. On the basis of that 
evaluation, the marketing of a particular biotech product 1s either 
approved or not, and individual EU Member States may provisionally 
restrict or prohibit the use and commercialization of these products. The 
WTO Panel did not consider the EU's general moratorium to be a valid 
SPS measure because the EU did not adopt a transparent risk 
assessment procedure and, instead , consisted only in a procedural 
decision to delay the final substantive approval decision in breach of SPS 
Annex C(l) (a) and Article 8. Furthermore , beside the undue delay, the 
safeguard measures should have been adopted only in case sufficient 
evidence to conduct a risk assessment was not a viable option, which was 
not actually proved and therefore violated the provisions of Article 2.2. 

The above-mentioned disputes highlight a lack of WTO cases 
concerning food security matters other than health concerns, and 
therefore Member States may be willing to challenge unjustifiable, 
discriminatory, or disguised food security practices , other than those 
related to health, allowing the Dispute Settlement Body to contribute 
through its case law to the ongoing debate concerning global food security 
governance via the WTO. 

As stated in the above analysis, food security constitutes a national 
security concern in many developing countries such as China. 2G9 For 
instance, prior to China 's accession to the WTO , the Member States 
raised questions about the impact ofWTO accession on China's long-term 
food security as well as the implications on its agricultural policy and 
agricultural sector. 270 The general view is that the Chinese Government 
has adopted new laws and regulations in the agricultural sector to comply 
with its WTO requirements, but at the same time it has also adopted 
policies to control the immediate or long-term negative effects that those 
liberalization measures would have produced against the interests of the 
Chinese farmers and of the population , in general. In particular , the 
Chinese Government tried to move towards policie s that favored the 

200 
:i:3aris Karapinar , 'Sustainability' in Chinese Agriculture: Stakeholders' Perceptions 

and Policy Trade-offs 10 (NCCR Trade Regulation, Swiss National Center of Competence 
in Research, Working Paper No 2009/ 13, 2009). 

27° Fen Lu, China's WTO Accession: The Impa ct on its Agriculture Sector and Grain 
Policy, in AGRICULTURE AND FOOD SECURITY IN CHINA: WHAT EFFECT WTO ACCESSIO:-. AXD 
REGIONAL T_RADE ARRANGEMEN'l'S? 55 , _69_ (Chunlai Chen & Ron Duncan eds., 2010). See 
also Chunla1 Chen & Ron Duncan, Achumng Food Security in China: Impli cations of H'TO 
Accession, in AGRICULTURE AND FOOD SECURITY IN CHINA: WHAT EFFECT WTQ ACCESSION 

REGIONAL TRADE ARRA.."IGE~::--'TS? 55, 69 (Chunlai Chen & Ron Duncan eds., 2010) ; 
Jikun Huang_& S~tt Rozelle, Agricultural Developm ent and Pol icy Before and After China's 
WTO Accession, in AGRJCULTURE AND FOOD SECURITY IX CHIXA: WHAT EFFECT WTO 
ACCESSION AND REGIOKAL TRADE ARRANGEMENTS? 55, 69 (Chu la Cb & Ro D 
eds. , 2010)]. n 1 en n uncan 



2016) TRADE AND PROGRESS: THE CASE OF CHINA 105 

modernization of the agricultural sector to be able to face globalization 
and world competition.211 

As already pointed out, food security is certainly closely linked to the 
right to food. China is not so willing to publicly discuss its human rights 
records, and it is of particular interest to note China's general behavior 
towards UN Special Rapporteurs, which is far from supportive as it has 
shown reluctance to accept their pending requests to visit. 272 The Special 
Rapporteurs' roles are quite important both for raising relevant questions 
but also for conducting fact-finding processes in target countries through 
their missions and country visits. However, China decided to invite the 
UN Special Rapporteur on the right to food, Olivier De Schutter, to visit 
China from 15 to 23 December 2010. 273 China considers the human right 
to adequate food (and, to some extent, also the other trade related human 
rights to water and sanitation) a less political and sensitive topic on which 
the government has established a growing set of policies and the political 
will to improve the internal context in favor of the Chinese population. 
The UN Special Rapporteur on the right to food had indeed recognized 
China's advances on food availability and in the programs to reach self -
sufficiency in basic food supply and challenges in ensuring the 
sustainability of agricultural production. 274 He also examined the 
remaining challenges affecting access to adequate food, in particular, 
among poor rural and urban households, including increasing land 
degradation, pollution and climate change. 

All these matters cannot avoid, of course, raising the need for scrutiny 
and monitoring of the general context of the Chinese legal and political 
framework that may affect the right to adequate food. For these reasons, 
the list of recommendations to the Chinese Government included in the 
Final Report of the UN Special Rapporteur on the right to food, following 
his mission and country visit, in regards to the support of small 
agricultural producers, includes the need to "[i}mprove transparency and 
limit the risks of corruption of local officials in land deals, thus ensuring 
effective compliance with the 2007 Property Law, for example by creating 
a system whereby the buyers authorized to develop land would pay the 
compensation due into a trust fund, which in turn would compensate the 
land-losing farmer, without the amount transiting through the local 
public officials". 275 Another recommendation in favor of small 

211 H UA.N"G & ROZELLE, supra note 270, at 69. 
2;z KATRIN K!NZELBACH, THE Eu's HUMAN RIGHTS DIALOGUE WITH CHINA: QUIET 

DIPLOMACY AND ITS LIMITS 190 (2015). 
21a Olivier De Schutter, Mandate of the Specia l Rapporteur of the Right to Food, 

Preliminar y Observations and Conclusions, Mission to the People's Republic of China from 
15 to 23 December 2010 , Beijing, China, Dec. 23, 2010 , http://www.srfood.org 
/images /stories/pdf/officialreports/de-schutter-china-statement.pdf; Olivier de Schutter 
(Special Rapporteur on the Right to Food), Report of the Special Rapporteur on the Right to 
Food, U.N. Doc A/HRC/19/59/Add.l (Jan. 20, 2012), http://www.ohchr.org/Documents/ 
HRBodies/HRCouncil/RegularSession/Sessionl9/A-HRC-19-59-Addl _en.pdf. 

21• Jd. 
215 Id. "J41, Letter b (emphasis added). 



106 COLUMBIA J OURNAL OF ASIAN LAW [Vol. 30:51 

agricultural producers included in Par agraph 41 suggests that the 
Chinese Government "[b]etter circumscribe the possibility for the 
collective to impose readjustment s, as well as the possibility for the State 
to evict land users in the public intere st, including by allowing courts to 
apply much stricter scrutiny to the authorities ' reliance on these 
exceptions to the security of tenure of the land user. " 276 Both 
recommendations perfectly align with the amendments to the Chinese 
Constitution adopted in 200 4 that were described in the previo us 
paragraph , i.e. the added third paragr ap h of Article 33 for the respect and 
preservation of human right s, 277 the second paragraph of Article 11 
("Citizens' lawful private propert y is inviolable") ,278 and the obligation to 
compensate in case of expropriation or requisition. 279 It is necessary to 
stress that land as real property is treated differently than other 
properties . According to Article 10 of the Chinese Constitution , "[l]and in 
the cities is owned by the State. Land in the rural and suburban areas is 
owned by collectives except for those portions which belong to the State 
in accordance with th e law; hou se sites and private plot s of cropland and 
hilly land are also owned by collectives. The State may in the public 
interest take over land for it s u se in accordance with the law. No 
organization or individual m ay appr opriate , buy , sell or lease land, or 
unlawfully transfer land in other ways. All organizations and individuals 
who use land mu st mak e rational use of the land. " 280 Although 
individuals cannot privatel y own land , they may obtain transferable 
land-use rights for a numb er of years for a fee. In this sense , the UN 
Special Rapporteur recommended to "[e]nsure a greater security of land 
use rights, including by automatically extending such rights beyond the 
current 30-year term , unl ess no member of the household to whom the 
land has been contracted st ill li ves on the land. "281 

The agricultural sector and the connected land ownership and rights 
are of course very sensitive issues from a political , cultural , and historical 
point of view. Nevertheless, in his report, the UN Special Rapporteur 
stressed that the special le gal and political treatment of the land and 
connected land rights in China are substantially affecting the right to 
adequate food. He also suggested specific options and solutions to the 
Chinese Government like "a llowing courts to apply much stricter scrutiny 
to the authorities ' reliance on th ese exceptions to the security of tenure of 
the land user. "282 Then it is left to China to find appropriate solu tions 
("Be:ter circumscrib e the possibility for the collective to impose 
readJustments, as well as the possi bilit y for the State to evict land users 

276 Id. 41, Letter c. 
277 XIANFA art. 33 (1982) (China). 
278 Id. art. 13. 
21s Jd. 
280 Id. art. 10. 
281 de Schutter , supra note 273 , at 41 , Letter a (emphasis added). 
282 Id. 30. 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 107 

in the public interest") 283 that are compatible with the specific cultural 
and historical context to protect the right to adequate food, following the 
recommendations . 

In Paragraph 43, letter "d", the UN Special Rapporteur on the right 
to food also referred to social security as a human right. There he 
suggested to the Chinese Government to "[d]efine the right to social 
security as a human right, which beneficiaries may claim before courts or 
administrative tribunals, and inform beneficiaries about their rights, 
which is essential to ensuring respect for the right to social security and 
reducing the risks of corruption or favoritism at the local level." 284 

Again, this recommendation aligned with the 2004 Amendment to the 
Chinese Constitution which added a fourth paragraph to Article 14: "The 
State establishes a sound social security system compatible with the level 
of economic development." Of course, assuming that the Chinese 
Government follows the recommendation and implements a law 
establishing social security as a human right compatible with the "level 
of economic development," it is unknown whether the measure will be 
considered sufficient by the UN or other international standards . 

As this short analysis shows, the issue of food security and the related 
human right to food implies many more legal and political reforms that 
go beyond issues strictly related to food security and safety. These topics 
raise issues of transparency, independence, administrative, procedural 
and judicial fairness, access to knowledge and information, property and 
land rights that are all critical for the real and full achievement of food 
security and safety and the right to food in the territory of the People's 
Republic of China. 

5. Restriction of Trade Openness on Cultural Products on the Basis of 
Public Morals 

The concept of public morals includes a wide range of cultural, social, 
and ethical values. 285 It is clear that mores, ethics, beliefs, ideals, and 
dogmas may vary depending on the different communities and the 
national or regional context. 

As a matter of fact, WTO rules impact culture in many different ways, 
and it is not possible to create a universal, common sense instrument to 
handle all the aspects related to public morals. 286 So, through case law, 
the WTO must try to find a balance between free trade and relevant 
national or regional characteristics like public morals and public order, 
forbidding any means of arbitrary and unjustifiable discrimination 
among domestic and imported products. Cultural products are the 
tangible or intangible creations from a specific culture or societal 

283 Id. 41, Letter c. 
'184 Jd. "'43 , Letter d . 
28.5 MA'ITHIAS HERDEGEN, PRINCIPLES OF INTERNATIONAL ECONOMIC LAW 206 (2013). 
286 NICOLA WENZEL, Article XX lit a GATT, in WTO: TECHNICAL BARRIERS AND SPS 

MEASURES 2, 82 (Riidige1· Wolfrum , Peter-Tobias Stoll & Anja Seibert-Fohr eds. 2007). 



108 COLUMBIA JOUR NAL OF ASIAN LA IV [Vol. 30:51 

practice,287 like audiovisual products (film, video, television radio, _etc.) 
and printed publications (magazines, books, periodicals , etc.). The failure 
of the US and the EU to agree on the definition of cultural products by 
the end of the Uruguay round resulted in the establishment ofWTO rules 
that contain little explicit guidance on how WTO law applies to cultural 
products. 288 

Article XX (a) of the GATT states that "[ ... ] nothing in this Agreement 
shall be construed to prevent the adoption or enforcement by any 
contracting party of measures [ ... ] necessary to protect public morals" 
which is also included in Article XIV GATS ,289 together with the reference 
to the maintenance of public order. 290 

In the US-Gambling case, 29 1 Antigua and Barbuda (hereinafter also 
"Antigua") requested consultations regarding measures applied by 
central, regional, and local authorities in the United States of America 
that affected the cross-border supply of gambling and betting services. 
According to Antigua, those US Federal and State measures, including 
federal laws such as the "Wire Act", the "Travel Act,'' and the "Illegal 
Gambling Business Act," whose cumulative impact resulted in making 
unlawful the supply of gambling and betting services on a cross-border 
basis, had dramatically affected Antigua 's market and economy 
Following implementation of the US measures , the Antiguan market 
registered a tremendous loss of 24 billion USD in one year (and 
corresponding loss of GDP) and a loss of employment caused by the rapid 
reduction from 119 gambling companies registered in Antigua down to 28 
companies. 

In this case, the Panel considered the term "public morals" to denote 
standards of right and wrong conduct maintained by or on behalf of a 
community or nation. The dictionary (Shorter Oxford English Dictionary, 
2002) definition of the word "order" that appears to be relevant in the 
context of Article XIV(a) reads as follows: "A condition in which the laws 
regulating the public conduct of members of a community are maintained 
and observed; the rule oflaw or constituted authority; absence of violence 

287 
FARAH & TREMOLADA, supra note 194 , at 21 -47; FARAH & TREMOLADA. CONFLICT 

BETWEEN INTELLECTUAL PROPERTY RIGHTS A.>.,t) HUMA,'\ RIGHTS, supra note 19-1, at 125-78. 
2'll! Tania Yoon, Culture, Human Right s and the WTO, in THE CULTL"RAL DL'\tENSION OF 

HUMAN RIGHTS 186, 187 (Ana Vrdoljak ed. 2014); DAVIDJ. BEDER.'\IA.'\, GLOBALIZATION ASD 
INTERNATIONAL LAW 126-27 (2008). 

Serl'ices: (!A '!'S:· The General Agreement on Trade in Sen·ices (GA TS): Object it-es, 
Coverage and Disciplines, WORLD TRADE ORGANIZATION, https ://www. wto .org/english/ 
tratop_e/serv_e /gatsqa _e .htm. (last visited May 23, 2017). 

200 
General Agr~ement on Trade in Services, art. XIV, Apr. 15, 1994, Marrakesh 

Agreement Establishing the World Trade Organization, Annex 1B, 1869 U.N.T.S. 183. See 
also ROLF H. WEBER & MIRA BURRI, CLASSIFICATION OF SERVICES IN THE DIGITAL ECONOMY 131 (2012). 

291 
Panel Report, United States - Measures Affecting the Cross-Border Supply of 

Gambling ~nd Betting Services, WTO Doc. \.\'TfDS285/R (Nov. 10, 2004); Appellate Body 
Report, United States - Measures Affecting the Cross-Border Supply of Gambling arid Belling 
Services, WTO Doc. WT/DS285 /AB/R (Apr. 7, 2005). 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 109 

or violent crimes."292 
The drafters of the GATS clarified in footnote 5 that "[t]he public 

order exception may be invoked only where a genuine and sufficient ly 
serious threat is posed to one of the fundamental interests of society." 
Hence, in our view, the dictionary definition of the word "order," read 
together with footnote 5, suggests that "public order" refers to the 
preservation of the fundamental interests of a society, as reflected in 
public policy and law. These fundamental interests can relate, inter alia, 
to standards oflaw, security and morality.293 

The Antiguan Government declared that it has taken steps since the 
mid-1990s to build up a primarily Internet -based, "remote-access" 
gaming industry as part of its economic development strategy. 
Additionally, it has established a very solid set oflaws and regulations to 
avoid foreign or domestic companies using this flourishing industry to 
hide other illicit objectives, such as money -laundering or any other forms 
of financial or organized crime. 

In _fact, the US stated that the close enforcement cooperation between 
federal and state authorities with an overreaching set of laws and 
regulations was essential to taking action against criminal organizations 
that use interstate commerce and interstate communications with 
impunity in the conduct of their unlawful activities . As such, the US 
legislation was mainly concerned with effectively curtailing gambling 
operations because the profits from illegal gambling are huge and they 
are the primary source of the funds which finance organized crime.294 

Moreover, Antigua listed a vast array of gambling and betting games 
and services which are offered on a commercial basis in the US (and 
elsewhere) and which had clearly showed that the US was also strongly 
exploiting the market opportunities that this sector may provide to the 
domestic economy in terms of employment and taxes that US Federal and 
State authorities could collect . For these reasons, Antigua considered 
unacceptable or unjustifiable similar statements like the ones that the 
US reported at the DSB meeting of June 24, 2003 that cross-border 
gambling and betting services are prohibited because of "the social, 
psychological dangers and law enforcement problems that they created, 
particularly with respect to Internet gambling and betting.' 295 The US 
also expressed its "grave concerns over the financial and social risks 
posed by such activities to its citizens, particularly but not exclusively 
children".296 In the opinion of Antigua, those arguments had to be rejected 

292 Panel Report, United States - Measures Affecting the Cross-Border Supply of 
Gambling and Betting Ser vices, i)6.465 - 6.467, WTO Doc. WT/DS285/R (Nov. 10, 2004). 
See also MIRINA GROSZ, SUSTAINABLE WASTE TRADE UNDER WTO LAW 440 (2011). 

293 Panel Report , United States - Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services, ,i 6.465 - 6.467, WTO Doc. WT/DS285/R (Nov. 10, 2004). 
See also MIRINA GROSZ, SUSTAINABLE WASTE TRADE UNDER WTO LAW 440 (2011). 

294 Id. 3.262. 
295 Id. 3.253. See also Minutes of the DSB meeting, June 24, 2003, WTO Doc. 

WT/DSB/M/151 , 47. 
296 Chrisitine Kaufmann & Rolf H. Weber, Reconcilaing Liberlized Trade in Financial 



110 COLUMBIA JOUR NAL OF ASIAN LAW [Vol. 30:51 

as well considering that these concerns should have been applied by the 
US authorities against their domestic market as well and not only foreign 
providers. 

The Appellate Body decided that the US GATS Schedule included 
specific commitments on gambling and betting services and that the entry 
of"other recreational services (except sporting)" in the US Schedule must 
be interpreted as including "gambling and betting services" within its 
scope . Reversing the decision of the Panel , the Appellate Body also found 
that "the United States has demonstrated that the Wire Act, the Travel 
Act, and the Illegal Gambling Business Act are measures necessary to 
protect public morals or maintain public order, in accordance with 
paragraph (a) of Article XIV, but that the United States has not shown, 
in the light of the Interstate Horseracing Act, that the prohibitions 
embodied in those measures are applied to both foreign and domestic 
service suppliers of remote betting services for horse racing and, 
therefore, has not established that these measures satisfy the 
requirements of the chapeau" of Article XIV. 297 Even though the final 
decision went partially against the US, it is relevant to stress its 
application to the Wire Act, the Travel Act, and the Illegal Gambling 
Business Act of the exception under Article XIV(a) to protect public 
morals and to maintain public order . 

The public morals exceptions under Article XX(a) and its relation to 
cultural products was considered in the China -Pu blications and 
Audiovisual Products case ,298 in which the US challenged several Chinese 
measures that limited the number of entities having the right to import 
and distribute reading materials, audiovisual home entertainment 
products, sound recordings, and film for theatrical release. All these 
products may qualify as "cultural goods and services" under the legal 
definition contained in the UNESCO Convention. 299 

China claimed that these measures and mechanisms for selecting 
those private and business entities were essential for avoiding the 
importation into China of reading materials and finished audio-visual 
products with inappropriate content. This Chinese provision was a 
necessary means to protect public morals within the country, according 
to the meaning of Article XX (a) of the GATT. 300 The US claimed that the 

Services and Domestic Regulation, in THE WORLD TRADE ORGANIZATION AND TRADE IN 
SERVICES 411, 418 (Kern Alexander & Mads T0nnesson Andenres eds., 2008). 

297 Appellate Body Report, United States - Measures Affecting the Cross-Border Supply 
of Gambling and Betting Services, 173, WTO Doc. WT/DS285/AB/R (Apr. 7, 2005). See also 
SCHEFER, supra note 112, at 238; BERTA ESPERANZA HERN.ANDEZ-TRUYOL & STEPHEN 
JOSEPH POWELL, JUST TRADE: A NEW COVENANT LINKlNG TRADE AND HUMAN RIGHTS 147 
(2012). 

296 Appellate Body Report, China -Measures Affecting Trading Rights and Distribution 
Services for Certain Publicat ions and Audiovisual Entertainment Products, WTO Doc. 
WT/DS363/AB/R (Dec. 21 , 2009). 

299 WILLIAM J. DAVEY, NON-DISCRIMINATION IN THE WORLD TRADE ORGANIZATION: THE 
RULES AND EXCEPTIONS 258 (2012). 

300 ANGELICA BONFANTI, Pu blic Morals in Interna tional Trade: WTO Faces Censorship, 
in INTERNATIONAL COURTS AND THE DEVELOPMENT OF INTERNATIONAL LAW: ESSAYS lN 



2016] TRADE AND PROGRESS: THE CASE OF CHINA 111 

Chinese laws and regulations provided preferential treatment to 
Chinese-sourced products over foreign publications and entertainment 
products in addition to the fact that the Chinese regulations restricted 
market access to foreign material in contrast with trade commitments 
included in its Accession Protocol, the GATS, and the GATT.301 In this 
case, the Panel decided in favor of the US, but left the door open to 
consider cultural concerns as it interpreted broadly the public moral 
exception under Article XX (a) GATT. 

The US - Gambling, China - Publications _and Audiovisual Products, 
and EU - Seals decisions constitute important and relevant landmarks 
concerning the possible clash between trade expansion and the protection 
of public morals in the WTO case law.ao2 Through these cases, the dispute 
settlement jurisprudence confirmed that WTO Member States have the 
right to determine the level of protection that they consider appropriate, 
and as such States should receive "some scope to define and apply for 
themselves the concepts of public morals and public orders in their 
respective territories, according to their own systems and scales of 
values." 303 

6. Concluding Remarks 

Globalization has transformed and shaped the contemporary world, 
which is more and more interconnected without borders. Globalization is 
the result of a combination of factors, which include the role of technology, 
the improvement of telecommunications, such as the internet, and 
advances in transport for the movement of goods and services. 

But globalization is not limited to trade in goods and society has to 
face challenges and risks such as environmental crises, energy security, 
terrorism, and the role of multinational companies in the production 
chain and the effects on society. 

The idea of limiting the excesses of globalization may be, to a certain 
extent, justified. There is an increasing need to establish innovative 
instruments, new forms of global governance and democratic control to 

HONOUR OF TULLIO TREVES 687, 695 (Nerina Boschiero, et al. eds., 2013). See also Julia 
Qin , Pushing the Limit of Global Governance, 10 CHINESE J. INT'L L. 271, 271 -322 (2011). 

ao1 Bryan Mercurio & Mitali Tyagi, China's Evolving Role in WTO Dispute Settlement: 
Acceptance, Consolidation and Activation, in EUROPEAN YEARBOOK OF INTERNATIONAL 
ECONOMIC LAW 2012, 89, 104 (Christoph Herrmann & Jorg Philipp Terhechte eds., 2011); 
Mira Burri, The Trade Versus Culture Discourse: Tracing Its Evolution in Global Law, in 
CULTURE AND INTERNATIONAL ECONOMIC LAW 104, 115 (Valentina Vadi & Bruno de Witte 
eds. , 2015); Frieder Roessler, Comment: Appellate Body Ruling in China-Publications and 
Audio visual Produ cts, in THE WTO CASE LAW OF 2009: LEGAL AND ECONOMIC ANALYSIS 119, 
119 (Henrik Horn & Petros C. Mavroidis eds., 2011). 

m Panagiotis Delimatsis, The Puzzling Interaction of Trade and Public Morals in the 
Digital Era, in TRADE GOVERNANCE IN THE DIGITAL AGE: WORLD TRADE FORUM 276, 277 
(Mira Burri & Thomas Cottier eds., 2012). 

303 ·Panel Report, United States - Measures Affecting the Cross-Border Supply of 
Gambling and Betting Services, 6.461, WTO Doc. WT/DS285/R (Nov. 10, 2004). See also 
MIRINA GROSZ, WTO LAW, SUSTAINABLE WASTE TRADE UNDER WTO LAW 441 (2011). 



112 COLUMBIA JO URNAL OF ASIAN LAW [Vol. 30:51 

limit the risk that important societal values, which should be upheld to 
balance the excesses of globalization, are directly or indirectly affected by 
the global expans ion of world trade. Globalization without local concerns 
can endanger relevant issues such as good governance , human rights, 
right to water, right to food, socia l, economic and cultural rights, labor 
rights, access to knowledge, public health , social welfare, consumer 
interests and animal welfare , climate change , energy, environmental 
protection and sustainable development , product safety, food safety, and 
security. 

In this paper, the legal reasoning and clarifications of the Panels and 
the Appellate Body (including the use of dissenting opinions among the 
Panelists) following the passage from GA TT to the WTO have also been 
explored. Even when the final decisions were not in favor of the specific 
measures at issue (which were therefore not justified under Article XX of 
the GATT), the adjudicatory bodies were more and more willing to 
carefully consider the environment , sustainable development and other 
NTCs. 

Furthermore, in the author's opinion , the WTO has indirectly 
contributed to some of the Chinese legal reforms , even outside the areas 
of WTO and international trade law. These reforms aim to better protect 
the rights of Chinese workers and citizens as a whole and balance the 
negative effects that globalization and free trade would have had on the 
Chinese internal legal system. 

The increase of WTO Plus Obligations for new WTO Member States 
and the potential limitation on the use of Article XX of the GATT is 
raising concerns. In particular, they might be considered new forms of 
unfair discrimination perpetuated by those who until now had the power 
against developing countries that are gradually entering the WTO. This 
is even less justifiable if it may impede the adoption of reasonable and 
non-discriminatory measures that have the sole objective of protecting 
the environment and facilitating sustainable development. Therefore, 
these matters must be clarified either through supplementary WTO 
multilateral negotiations or the Panel or Appellate Body case law. China 
is having a leading role in these issues. 

The WTO and other international economic organizations will have 
to find a balance between globalization, sustainable development , and 
local concerns. The inclusion of more developing countries and emerging 
economies in the int ernatio nal economic system is making this necess ity 
very urgent. It is also revealing the potential unfairness and 
inconsistencies in the system. What will be seen in the years to come is 
whether China, and other emerging economies, will represent a solution 
to find a balance between globalization and sustainable development or 
will become the means to rupture the system. Keeping in mind the 
stepping stones of the WTO, environmental-friendly case law, and the 
ongoing WTO negotiations , one can be positive of the need for the WTO 
to continue on the path toward sustainab le development.