撤銷香港優(yōu)惠貿(mào)易地位：法律框架與啟示

1、Revoking Hong Kongs Preferential Trade Status: Legal Framework and ImplicationsUpdated April 2, 2021On July 14, 2020, then-President Donald Trump HYPERLINK /content/pkg/FR-2020-07-17/pdf/2020-15646.pdf issued an executive order finding the Hong Kong Special Administrative Region (Hong Kong) “no long

2、er sufficiently autonomous to justify differential treatment in relation to the Peoples Republic of China” (China) with regard to specific laws listed in the Order, and suspending differential application of those laws to Hong Kong. One of the relevant laws, HYPERLINK /view.xhtml?req=granuleid%3AUSC

3、-prelim-title19-section1304&num=0&edition=prelim 19 U.S.C. HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title19-section1304&num=0&edition=prelim 1304, sets out how products from other territories must be marked to indicate their HYPERLINK /product/pdf/IF/IF10754 country of origin. In response to

4、 the Executive Order, U.S. Customs and Border Protection (CBP) issued a HYPERLINK /content/pkg/FR-2020-08-11/pdf/2020-17599.pdf notice requiring all goods previously marked with “Hong Kong” to indicate “China” as their country of origin. Since thisaction, Hong Kong has initiated a World Trade Organi

5、zation (WTO) HYPERLINK /english/tratop_e/dispu_e/cases_e/ds597_e.htm dispute against the United States, arguing the new marking requirements violate several WTO agreements. On March 31, 2021, PresidentJoe Bidens Administration HYPERLINK /2021-hong-kong-policy-act-report/ indicated that it intends to

6、 maintain the suspension of differential treatment of Hong Kong.This Sidebar presents the legal framework that applies to Hong Kongs status as a separate customsterritory from China, and it analyzes the implications of the U.S. actions as well as Hong Kongs decision to initiate WTO proceedings. Alth

7、ough the former Presidents executive order suspended a number of other statutory provisions that gave preferential treatment to Hong Kong, these actions are beyond this Sidebars scope.BackgroundOn May 28, 2020, the National Peoples Congress of China HYPERLINK /world/2020/may/28/china-vote-npc-nation

8、al-security-laws-hong-kong-us-protest approved a decision authorizing its Standing Committee to enact laws to prohibit acts and activities in Hong Kong it considers to undermine national security. The same day, Australia, Canada, the United Kingdom, and the United States issued a HYPERLINK .uk/gover

9、nment/news/joint-statement-from-the-uk-australia-canada-and-united-states-on-hong-kong joint HYPERLINK .uk/government/news/joint-statement-from-the-uk-australia-canada-and-united-states-on-hong-kong statement expressing “deep concern” about Chinas decision, suggesting that such a law would“dramatica

10、lly erode Hong Kongs autonomy” and conflict with Chinas international obligations to respect such autonomy stemming from, among other things, the HYPERLINK /doc/Publication/UNTS/Volume%201399/v1399.pdf#page%3D67 Sino-British Joint Declaration on the HYPERLINK /doc/Publication/UNTS/Volume%201399/v139

11、9.pdf#page%3D67 Question of Hong Kong. In addition, the U.S. Secretary of State issued a HYPERLINK /2020-hong-kong-policy-act-report/ report finding Hong Kong no longer sufficiently autonomous from China to warrant certain privileges under U.S. law that allow Hong Kong to be treated differently than

12、 China. Thereafter, President Trump HYPERLINK /news/world-us-canada-52856876 announced on May 30, 2020, thatCongressional Research ServiceLSB10488CRS Legal SidebarPrepared for Members and Committees of Congress(i.e., GATT, the WTOs predecessor) and “recognize certificates of origin for manufactured

13、goods issued by” Hong Kong.To implement these policy statements, these Acts HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5721&num=0&edition=prelim approve the following: (1) continued application of existing U.S. laws to Hong Kong in the same manner as they applied prior to July 1

14、, 1997, unlessotherwise provided for by law or executive order; and (2) continuation of all international agreements to which the United States and Hong Kong are members, provided these agreements were in force on orafter July 1, 1997, and entered into before November 27, 2019.Under the U.S.-Hong Ko

15、ng Policy Act, the President may HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5722&num=0&edition=prelim decide to suspend application of a U.S. law that provides Hong Kong with treatment different than that accorded to China if he determines that “Hong Kong is not sufficiently aut

16、onomous to justify” such different treatment. Such a determination must be made via executive order and may be rescinded by a subsequent executive order if the President determines that Hong Kong has regained sufficient autonomy to qualify for differential treatment. Withrespect to international agr

17、eements between Hong Kong and the United States, the President may HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5721&num=0&edition=prelim determine whether Hong Kong is legally competent to carry out its international obligations or “that the continuation of Hong Kongs obligations

18、 or rights under any such treaty or other international agreement is not appropriate under the circumstances.” Such a finding must be HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5731&num=0&edition=prelim reported to Congress. The preciseconsequences of the Presidents exercise of

19、this authority are unclear, as the statute does not set out what the President may do following such a finding. This may reflect the fact that the processes for suspending, terminating, or withdrawing from treaties and other international agreements HYPERLINK /product/pdf/R/R44761 differ depending o

20、n theterms of the agreements.When executing his powers under these Acts, the President “shall HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5724&num=0&edition=prelim consult appropriately” with Congress. This requirement reflects the executive branchs sole authority to HYPERLINK /o

21、pinions/14pdf/13-628_3dq3.pdf#page%3D11 recognize governments and their boundaries (i.e., to recognize that China is not only sovereign over but also controls Hong Kong) and Congresss role in certain aspects of HYPERLINK /browse/essay/artI_S1_1_3_1/ALDE_00000011/ foreign affairs, including regulatio

22、n of HYPERLINK /browse/essay/artI_S8_C3_1_1/ALDE_00001057/ foreign commerce.Implications of Revoking Hong Kongs Trade StatusPursuant to the former Presidents July 2020 Executive Order, CBP issued a notice requiring goods from Hong Kong to list “China” as the country of origin. This section discusses

23、 the effects of CBPs notice on the treatment of goods from Hong Kong under U.S. law, and then discusses Hong Kongs decision to initiate a WTO dispute regarding the notice.Changes to Hong Kongs Customs Status Under U.S. LawIn 1997, the U.S. HYPERLINK /content/pkg/FR-1997-08-11/pdf/97-21278.pdf Depart

24、ment of Commerce and U.S. HYPERLINK /content/pkg/FR-1997-06-05/pdf/97-14662.pdf Customs Service (now CBP) promulgatedregulations to treat Hong Kong as a separate customs territory in the same manner as it had been treated while under British control, even after control of Hong Kong passed to China.

25、CBPs 2020 HYPERLINK /content/pkg/FR-2020-08-11/pdf/2020-17599.pdf noticerequiring goods produced in Hong Kong to be marked with “China” as the country of origin eliminates part of that preferential treatment. CBP has HYPERLINK /trade/rulings/frequently-asked-questions-guidance-marking-goods-hong-kon

26、g-executive-order-13936 stated that the regulatory change applies only to how thecountry of origin is marked, but not to country-of-origin determinations for purposes of assessing customs duties. Thus, certain additional duties that apply to China, such as the HYPERLINK /trade/programs-administratio

27、n/entry-summary/section-301-trade-remedies/faqs Section 301 tariffs imposed after an investigation into Chinas trade-related practices, do not apply to goods produced in Hong Kong.Hong Kong and the WTOIn October 2020, Hong Kong initiated a WTO dispute against the United States, requesting consultati

28、ons and arguing the U.S. actions taken with regard to how products originating from Hong Kong must bemarked may violate WTO rules. This part provides an overview of Hong Kongs status at the WTO and then discusses its WTO dispute against the United States.Hong Kongs Status at the WTOHong Kong retains

29、 its own HYPERLINK /english/thewto_e/countries_e/hong_kong_china_e.htm membership in the WTOseparate from Chinaas the organization HYPERLINK /english/docs_e/legal_e/gatt47_02_e.htm#articleXXVI permits customs territories in addition to countries to join. As stated, the Joint Declaration and Basic La

30、w permit Hong Kong to retain its membership in the WTOs predecessor (i.e., GATT) and carry over this membership to the WTO in 1995 (which China did not join until 2001). Other nonsovereign customsterritories are also WTO members, including HYPERLINK /english/thewto_e/countries_e/macao_china_e.htm Ma

31、cao and HYPERLINK /english/thewto_e/countries_e/chinese_taipei_e.htm Taiwan, which has led to what some refer to as a “ HYPERLINK /view/journals/jwit/8/5/article-p671_.xml One China, Four WTO Memberships” phenomenon.To date, the United States has not suggested it would refuse to recognize Hong Kongs

32、 rights under the WTO agreements or find Hong Kong not legally competent to carry out its treaty obligations. However, if the President were to make such a determination pursuant to HYPERLINK /view.xhtml?req=granuleid%3AUSC-prelim-title22-section5721&num=0&edition=prelim Section 201 of the U.S.-Hong

33、 Kong Policy Act of 1992, at least two limitations on such a determination could be relevant. First, the determination would not affect Hong Kongs status as a WTO member vis-vis other WTO members. In other words, Hong Kong would not lose its WTO membership due to any potential U.S. actions to revoke

34、 its trade privileges under U.S. law; other WTO members are not required to adhere to a U.S. decision on thematter. Second, it is unclear whether such a determination would relieve the United States of itsinternational legal obligations to Hong Kong. On one hand, one might argue the United States no

35、 longer needs to respect its WTO obligations to Hong Kong, as only actors with HYPERLINK http:/www.humanrights.is/en/human-rights-education-project/human-rights-concepts-ideas-and-fora/human-rights-actors/international-legal-personality international legal personality may incur or be owed internatio

36、nal obligations. On the other hand, one could argue that Hong Kongretains its legal personality, at least with respect to trade, as this status remains in effect under the HYPERLINK .hk/en/basiclawtext/chapter_7.html Basic HYPERLINK .hk/en/basiclawtext/chapter_7.html Law; therefore the United States

37、 would still have to respect its international obligations owed to Hong Kong as a matter of international law.Hong Kongs Challenge to U.S. ActionsOn October 30, 2020, Hong Kong requested WTO consultations with the United States with respect to the new marking requirements for goods produced in Hong

38、Kong. The United States agreed to participate.After consultations failed to resolve the issue, on January 14, 2021, Hong Kong formally requested that a WTO panel be established to hear the dispute. During the January 25, 2021, meeting of the WTOs Dispute Settlement Body (DSB), the United States HYPE

39、RLINK /english/news_e/news21_e/dsb_25jan21_e.htm objected to the request, as permitted by HYPERLINK /english/tratop_e/dispu_e/dsu_e.htm#6 Article 6.1 of the WTOs Dispute Settlement Understanding. The DSB agreed to defer consideration of Hong Kongs panel request, at least in part due to the recent ch

40、ange in presidential administration in the United States. Hong Kong made a HYPERLINK /english/news_e/news21_e/dsb_22feb21_e.htm second request on February 22, 2021, and the DSB agreed to establish a panel.Hong Kongs request for a panel contends that the new marking requirement may violate provisions