The legality of Trump tariffs on
Chinese goods
Лю цзыхао
из экономического
факультета
The World Trade Organization
(WTO) might be the first victim
of the trade war between
China, the United States, and
the European Union. Today,
each is in flagrant violation of
its rules, and the institution’s
credibility as the protector of a
rules-based trading system is
in serious doubt.
As legal cover for its
decision, the United
States invoked a rarely
used WTO clause that
allows members to
suspend some trade
concessions on national
security grounds. And
WTO scholars agree that
Trump did not violate the
letter of the law.
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Washington’s defense has been quite clear:
According to the national security clause, the
WTO cannot “prevent any contracting party
from taking any action which it considers
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necessary for the protection of its essential
security interests,” and only the United
States can decide what is required to protect
those interests.
The tariffs plainly violate basic tariff
commitments made by the United States
under GATT Article II. with regard to the
WTO, however, GATT Article XXI contains
an exception to WTO obligations that allows
a WTO member nation to take measures “it
considers necessary” to protect “essential
security interests” relating to traffic in goods
and materials “carried on directly or
indirectly for the purpose of supplying a
military establishment” or taken in time of
“emergency in international relations.” The
phrase “it considers necessary” makes
Article XXI a provision that is “self-judging”
and renders its invocation unreviewable at
least to a degree.
WTO rules require that whenever one
member country believes that another has
violated its trading rights, it must bring the
matter to the WTO Dispute Settlement Body.
Only this body can authorize retaliation.
Since these countries acted wholly
unilaterally in retaliating to Trump’s gambit,
there is no question that they broke the rules.
Following the steel and aluminum
tariffs, the United States had
imposed subsequent tariffs on
imports from China worth $250
billion. (China, naturally, responded i
n kind.) This time, the president
used U.S. law—Section 301 of
Trade Act of 1974—to justify the
decision.
U.S. officials complaint about Chinese
licensing practices that the U.S. says
appeared to violate the WTO’s intellectual pr
operty agreement.
The other U.S. accusations against China including unfair support of investment in U.S.
assets
to obtain technology - did not seem to involve the
WTO.
The WTO panel thinks the U.S. law
conformed to WTO rules because
the United States had “explicitly,
officially, repeatedly and
unconditionally” confirmed it would
only employ Section 301 tariffs
based on the outcome of a WTO
dispute.
Thank you!