1. Introduction

Such commitment can be found in a Report of the Working Party containing a summary of proceedings and conditions of entry, a Protocol of Accession, and Schedules of market access commitments in goods and services agreed between the acceding government and WTO Members. Retrieved September 18, 2023, from https://​www.​wto.​org/​english/​thewto_​e/​acc_​e/​acces_​e.​htm.

Permanent Sovereignty over Natural Resources, General Assembly Resolution 1803 (XVII) of 14 December 1962.

Disputes related to export control handled by the Dispute Settlement Body (“DSB”) include but are not limited to DS155, Argentina—Measures Affecting the Export of Bovine Hides and the Import of Finished Leather; DS194, United States—Measures Treating Export Restraints as Subsidies; DS394/395/398, China—Measures Related to the Exportation of Various Raw Materials; DS431/432/433, China—Measures Related to the Exportation of Rare Earths, Tungsten, and Molybdenum; DS590, Japan—Measures Related to the Exportation of Products and Technology to Korea. We also noted that on 12 December 2022, China officially launched a dispute settlement mechanism against the United States (U.S.) regarding the export controls affecting the export of certain advanced computing and semiconductor manufacturing items.

Article XI:1 of GATT 1994: No prohibitions or restrictions other than duties, taxes, or other charges, whether made effective through quotas, import or export licenses or other measures, shall be instituted or maintained by any contracting party on the importation of any product of the territory of any other contracting party or on the exportation or sale for export of any product destined for the territory of any other contracting party.

WT/DS476/R, European Union and its Member States—Certain Measures Relating to the Energy Sector, 10 August 2018, para 7.243; WT/DS438/AB/R, WT/DS444/AB/R, WT/DS445/AB/R, Argentina—Measures Affecting the Importation of Goods, 15 January 2015, paras. 5.216–5.218.

For example, on 11 September 2019, Korea requested consultations with Japan regarding certain measures, including licensing policies and procedures, adopted by Japan allegedly restricting exports of fluorinated polyimide, resist polymers and hydrogen fluoride, and their related technologies destined for Korea. Those products are used primarily in the production of smartphones, TV displays, and semiconductors. Korea claimed that the measures appear to be inconsistent with Article XI:1 of the GATT. Retrieved September 18, 2023, from https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​cases_​e/​ds590_​e.​htm.

Article XI:2 of the GATT 1994: The provisions of paragraph 1 of this Article shall not extend to the following: (a) export prohibitions or restrictions temporarily applied to prevent or relieve critical shortages of foodstuffs or other products essential to the exporting contracting party; (b) import and export prohibitions or restrictions necessary to the application of standards or regulations for the classification, grading or marketing of commodities in international trade; (c) import restrictions on any agricultural or fisheries product, imported in any form,* necessary to the enforcement of governmental measures which operate…

Glauber, J., Laborde, D., & Mamun, A. (2022, April 13). From bad to worse: How Russia-Ukraine war-related export restrictions exacerbate global food insecurity. Retrieved September 18, 2023, from https://​www.​ifpri.​org/​blog/​bad-worse-how-export-restrictions-exacerbate-global-food-security.

Last paragraph of Article XI:2 of GATT 1994: Any contracting party applying restrictions on the importation of any product pursuant to subparagraph (c) of this paragraph shall give public notice of the total quantity or value of the product permitted to be imported during a specified future period and of any change in such quantity or value. Moreover, any restrictions applied under (i) above shall not be such as will reduce the total of imports relative to the total of domestic production, as compared with the proportion which might reasonably be expected to rule between the two in the absence of restrictions. In determining this proportion, the contracting party shall pay due regard to the proportion prevailing during a previous representative period and to any special factors* which may have affected or may be affecting the trade in the product concerned.

World Trade Organization.COVID-19 and world trade. Retrieved September 18, 2023, from https://​www.​wto.​org/​english/​tratop_​e/​covid19_​e/​covid19_​e.​htm.

World Trade Organization. (2020, April 23). Information Note: Export Prohibitions and Restrictions (p. 4). Retrieved September 19, 2023, from https://​www.​wto.​org/​english/​tratop_​e/​covid19_​e/​export_​prohibitions_​report_​e.​pdf.

Chapeau of Article XX of GATT 1994: Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures.

Paragraphs (a)–(j) of Article XX of GATT 1994: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; (c) relating to the importations or exportations of gold or silver; (d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this agreement, including those relating to customs enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and Article XVII, the protection of patents, trademarks and copyrights, and the prevention of deceptive practices; (e) relating to the products of prison labor; (f) imposed for the protection of national treasures of artistic, historic or archaeological value; (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; (h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the contracting parties and not disapproved by them or which is itself so submitted and not so disapproved; (i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilization plan; Provided that such restrictions shall not operate to increase the exports of or the protection afforded to such domestic industry, and shall not depart from the provisions of this agreement relating to non-discrimination; (j) essential to the acquisition or distribution of products in general or local short supply; provided that any such measures shall be consistent with the principle that all contracting parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of the agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist. The contracting parties shall review the need for this sub-paragraph not later than 30 June 1960.

WT/DS2/AB/R, United States—Standards for Reformulated and Conventional Gasoline, 29 April 1996, p. 22; WT/DS302/AB/R, Dominican Republic—Measures Affecting the Importation and the Internal Sale of Cigarettes, 25 April 2005, para. 64; WT/DS332/AB/R, Brazil—Measures Affecting Imports of Retreaded Tyres, 3 December 2007, para. 139.

The summary of this dispute can be found at: https://​www.​wto.​org/​english/​tratop_​e/​dispu_​e/​cases_​e/​ds431_​e.​htm.

Ibid., paras. 7.362–7.680.

2015 Report on Compliance by Major Trading Partners with Trade Agreements—WTO, FTA/EPA and IIA (p. 329). Retrieved September 22, 2023, from https://​www.​meti.​go.​jp/​english/​report/​data/​2016WTO/​pdf/​02_​06.​pdf.

Article XXI of GATT 1994, nothing in this agreement shall be construed (a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or (b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests (i) relating to fissionable materials or the materials from which they are derived; (ii) relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; (iii) taken in time of war or other emergency in international relations; or (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.

GATT/CP.3/SR.22, Corr. 1.

WTO Analytical Index on Article XXI of GATT.

The identified transit restrictions include (1) the 2016 Belarus Transit Requirements, (2) the 2016 Transit Bans on Non-Zero Duty and Resolution No. 778 Goods, and (3) the 2014 Belarus-Russia Bans on Transit of Resolution No. 778 Goods.

Ukraine claimed those measures maintained by Russia violated Articles V:2, V:3, V:4, V:5, X:1, X:2, X:3(a), XI:1, XVI:4 of GATT 1994; and Paragraph 2 of Part I of the Russian Federation’s Accession Protocol (to the extent that it incorporates paragraphs 1161, 1426 (first sentence), 1427 (first and third sentences) and 1428 of the Report of the Working Party on the Accession of the Russian Federation).

Ibid., para. 7.59.

Ibid., paras. 7.102–7.104.

Ibid., para. 7.131.

Ibid., paras. 7.132–7.135 & 7.138–7.139.

In this section, we do not strictly distinguish the term “export control” from the term “embargo”.

United Nations Security Council. Retrieved September 27, 2023, from https://​www.​un.​org/​securitycouncil/​.

United Nations Security Council. Sanctions and Other Committees. Retrieved September 27, 2023, from https://​www.​un.​org/​securitycouncil/​content/​repertoire/​sanctions-and-other-committees.

As for comprehensive embargos, there were a few Resolutions containing a comprehensive ban on the import of all commodities and products originating in sanctioned destinations as follows, Southern Rhodesia, S/RES/253 (1968); Iraq and Kuwait, S/RES/661 (1990); the Federal Republic of Yugoslavia (Serbia and Montenegro), S/RES/757 (1992). Notably, S/RES/917 (1994) bans both the import of into Member States’ territories of all commodities and products originating in Haiti and the export by their nationals or from their territories or using their flag vessels or aircraft of any commodities or products, whether or not originating in their territories, to any person or body in Haiti or to any person or body for the purpose of any business carried on in, or operated from, Haiti, and any activities by their nationals or in their territories which promote such sale or supply of such commodities or products.

DPRK-related Resolutions adopted after 2006 include, but are not limited to: S/RES/1718 (2006), S/RES/1874 (2009), S/RES/1887 (2009), S/RES/2087 (2013), S/RES/2094 (2013), S/RES/2270 (2016), S/RES/2321 (2016), S/RES/2345 (2017), S/RES/2356 (2017), S/RES/2371 (2017), S/RES/2375 (2017), S/RES/2397 (2017), S/RES/2407 (2018), S/RES/2464 (2019), S/RES/2515 (2020), S/RES/2569 (2021), S/RES/2627 (2022).

INFCIRC/254/Rev.11/Part 1 is the Trigger List of nuclear items. INFCIRC/254/Rev.8/Part 2 is the List of nuclear-related dual-use equipment, materials, software, and related technology. Items in S/2012/947 are those items, materials, equipment, goods, and technology related to ballistic missile programs.

Iran-related Resolutions mainly include but are not limited to: S/RES/1696 (2006), S/RES/1737 (2006), S/RES/1747 (2007), S/RES/1803 (2008), S/RES/1835 (2008), S/RES/1929 (2010), S/RES/2015 (2013).

Prior enabling legislation refers to an existence of a general law adopted as framework legislation expressly enabling the executive branch to implement by decree the UN Security Council decisions. Pre-existing legislation not designed for sanctions refers to existing laws or statutes not directly related to decisions of international organizations for the implementation of Security Council sanctions of a traditional type, such as trade sanctions, arms embargoes, restrictions on transfer of capital (the freezing of funds has been more problematic, being seen as seizure of private property), ban on air traffic and restriction of movement of persons. Ad hoc legislation means the parliamentary process for the adoption, on a case-by-case basis, of particular sanctions law.

Note, with the enactment of ECL, in the future, the legal basis for China to implement the UN’s export embargo may also include ECL.

For example, China abstained in the vote regarding the extension of sanctions against South Sudan, while Resolution S/RES/2683(2023) was still adopted by the Security Council at its 9332nd meeting on 30 May 2023. Subsequently, the Ministry of Foreign Affairs published an announcement implementing this resolution on its official website on 9 June 2023.

Annex to the letter dated 4 December 2007 from the representative of China to the Chairman of the Security Council Committee established pursuant to resolution 1540 (2004). Retrieved September 27, 2023, from https://​www.​un.​org/​en/​sc/​1540/​documents/​ChinaReport4Dec2​007.​pdf.

The latest amendment of 2022 deleted the previous Article 9 of the Law, which prescribes that foreign business operators engaged in the import and export of goods or technologies shall apply for a record registration with the competent department for foreign trade under the State Council or with an organization entrusted by the competent department for foreign trade under the State Council, except for those cases where a record registration is not required under the laws, administrative regulations, and the provisions. The specific measures for record registration shall be prescribed by the competent department for foreign trade under the State Council. Where a foreign business operator fails to register for the record, the Customs department shall not carry out customs clearance of imported or exported goods.

Ibid., Article 13.

Ibid., Article 17(1).

Ibid., Article 18.

Article 1 of the Draft Regulation on the Export Control of Dual-use Items (for public comments).

Ibid., Article 60.

Chapeau of Notice of the General Office of the State Council on Strengthening the Formulation and Supervision of Administrative Normative Documents (Guo Ban Fa [2018] No. 37), 16 May 2018.

According to Article 2 of the Administration Measures on Business Registration for Exports of Sensitive Items and Technologies, “sensitive items and technologies” under these Measures are those enlisted on the lists annexed to the Regulations on Export Control of Nuclear-Related Dual-use Items and Technologies, Regulations on Export Control of Missiles and Missile-related Items and Technologies, Regulations on Export Control of Dual-use Biological Items and Related Equipment and Technologies & Measures on Export Control of Certain Chemicals and Related Equipment and Technologies.

The drafting of the ECL was positioned as one of the legislative projects related to adapting to the requirements of the new normal of economic development, promoting sustainable and healthy economic development and opening up to the outside world in the 2016 plan. In other words, the legislation of the ECL was only suggested (to conduct surveys on the necessity and feasibility) in 2016.

The drafting of the ECL was positioned as one of the legislative projects urgently needed for comprehensive deepening reform in the 2017 plan, which means the drafting work should be finished in a timely manner.

Details of the legislative process of the ECL can be found at:

http://​www.​npc.​gov.​cn/​npc/​c1773/​c1848/​c21114/​ckgzlf/​.

Article 2(3) of the ECL.

Ibid.

Article 45 of the ECL.

Article 64 of the draft version of the ECL (for public comments) (2017).

Article 2(1) of the ECL.

Ibid., Article 2(4).

Ibid., Article 2(5).

Ibid., Article 2(6).

Article 2(2) of ECL.

Ibid., Article 4.

Ibid., Article 9(1).

Ibid., Article 9(2).

Ibid., Article 12(3).

Articles 4 & 5 of Regulation (EU) 2021/821 of the European Parliament and the Council of 20 May 2021 Setting Up a Union Regime for the Control of Exports, Brokering, Technical Assistance, Transit and Transfer of Dual-use Items.

Article 2(3) of ECL.

Ibid., Article 20.

Ibid., Article 16(2).

Ibid., Article 18(1).

Ibid., Article 16(1).

Ibid., Article 18(1).

Ibid., Article 5(1).

Ibid., Article 28.

Ibid., Articles 33 & 34.

Ibid., Article 35(1).

Ibid., Article 35(2).

Ibid., Article 36.

Article 37 of the ECL.

Ibid., Article 38.

Ibid., Article 39.

The concept of “a holistic approach of national security” was put forward by President Xi Jinping in the First Meeting of the Central National Security Committee on 15 April 2014. Five key elements of this concept are (a) people’s security, (b) political security, (c) economic security, (d) military, scientific and technological, cultural and social security, and (d) international security.

Both MOFCOM and the Ministry of Foreign Affairs of the PRC have repeatedly opposed certain export controls maintained by the U.S. government. For example, On April 8, the U.S. Department of Commerce announced to add seven Chinese institutions to its “entity list” for their “support to the military modernization of China”. Hereto, MOFCOM spokesman responded as follows, “China firmly opposes the U.S.’s adding the seven Chinese institutions to its export control “entity list”. Under the pretext of “national security” and “support to the military modernization of China”, the U.S. has repetitively abused export control measures and wielded state power against businesses and institutions of other countries. This severely disrupts international economic and trade order and poses critical threats to the security of global industrial and supply chains. It does not benefit China, the U.S., or the whole world. China urges the U.S. to stop its erroneous moves. We will take necessary countermeasures to protect the lawful rights and interests of its enterprises”. Retrieved September 27, 2023, from http://​english.​mofcom.​gov.​cn/​article/​newsrelease/​significantnews/​202104/​20210403052997.​shtml.

According to MOFCOM’s end-user and end-use certificate statement online, China issues end-user and end-use certificates (for sensitive items and technologies) for Chinese importers to the following 23 countries or regions, namely Australia, Belarus, Belgium, Canada, Denmark, France, Germany, Greece, Italy, Japan, Kazakhstan, Luxembourg, Netherlands, Norway, Portugal, Russia, Spain, Switzerland, Turkey, Ukraine, United Kingdom, United States of America, Hongkong of China. Retrieved September 27, 2023, from http://​zzyhzm.​mofcom.​gov.​cn/​.