Does China – Raw Materials spell the end for OPEC? An eco-centered GATT view on ‘sustainable development’.

Oops, I did it again. A touch too suggestive, perhaps, the title, however the thought did occur to me. OPEC Members increasingly are WTO Members, too. OPEC traditionally is questioned from the competition law /cartel point of view. However there are also anchors in the discipline on export restrictions. Whilst reviewing China – Raw Materials, it occurred to me that China’s reading of GATT Article XX(g)’s ‘conservation of exhaustible natural resources’, reflects the true meaning of the principle of sustainable development: one meeting ecological, economic, and social concerns. The Panel however stayed with the very strict confines of ‘ecological’, refusing to accept the application of XX(g) for ‘conservation’ aimed at ensuring the right pace of economic development. The Panel’s finding on this issue was not appealed, hence one does not know how the Appellate Body would review same.

Within the context of OPEC, the argument has been made that Article XX(g) could be employed by WTO Opec Members to try and justify export restrictions. Not so, if China – Raw Materials is to be followed (China- Rare Earth Elements or Rare Earth Materials most probably will be the first opportunity to review the issues).

My pondering of the case is forthcoming in RECIEL and in the meantime available on SSRN.


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