One of the obligations dealt with in the China - Publications report was paragraph 5.1 of China's Accession Protocol, which provides in part:
1. Without prejudice to China's right to regulate trade in a manner consistent with the WTO Agreement, China shall progressively liberalize the availability and scope of the right to trade, so that, within three years after accession, all enterprises in China shall have the right to trade in all goods throughout the customs territory of China, except for those goods listed in Annex 2A which continue to be subject to state trading in accordance with this Protocol. Such right to trade shall be the right to import and export goods. ...
So, within 3 years of accession, "all enterprises in China shall have the right to trade in all goods throughout the customs territory of China," with certain exceptions. Presumably, China must somehow ensure this "right to trade," although this is not stated explicitly. But at the same time, the obligation to ensure a "right to trade" must not "prejudice" China's "right to regulate trade in a manner consistent with the WTO Agreement." The "right to trade" is defined as the "right to import and export goods."
For DSC subscribers, you may recall that we have written about this in the DSC for the case. I am still thinking about the issue, though. And the more I think about it, the more confused I get! Here are some questions I'm pondering:
-- Are there any actual situations where a requirement to ensure that enterprises have the "right to trade" would "prejudice" China's "right to regulate trade in a manner consistent with the WTO Agreement"? If so, what are some examples?
-- Presumably, China can still ban products, including their import, for various reasons, such as health. Is this permitted under paragraph 5.1 itself? Or does China need to invoke an exception for that?
-- Doesn't every Member have the "right to regulate trade in a manner consistent with the WTO Agreement"? Doesn't this just mean the right to act in a way that does not violate WTO rules? What are the legal ramifications of setting out this right explicitly in a WTO legal text?
-- Does "a manner consistent with the WTO Agreement" encompass any action that does not violate the rules (or is justified by an exception)? Or does it only cover actions that fall within a specific area of WTO law (e.g., SPS measures) and comply with the specific rules set out for those measures?
I have a sense that I'm making the issue harder than it is, so feel free to straigthen me out on any of this.
