This is the legal basis of China's WTO complaint against the U.S. Section 232 tariffs, filed on April 5:
The measures at issue, operating separately or together, appear to be inconsistent with the United States' obligations under:
- Articles XIX:1(a), XIX:2 of the GATT 1994 and Articles 2.1, 2.2, 4.1, 4.2, 5.1, 7, 11.1(a), 12.1, 12.2 and 12.3 of the Agreement on Safeguards, because with regard to the measures at issue which constitute safeguard measures in substance, the United States has failed to make proper determination and to provide reasoned and adequate explanation of "unforeseen developments", imports "in such increased quantities" and "under such conditions", and "cause or threaten to cause serious injury to domestic producers", and the United States has also failed to follow proper procedural requirements including, for example, notification and consultation procedures, and has failed to apply the measures in a proper manner, for example, application irrespective of source of supply and only for necessary period of time.
- Article II:1(a) and (b) of the GATT 1994, because the United States has imposed import duties on certain steel and aluminum products in excess of the duties set forth and provided in the United States' Schedule of Concessions and Commitments annexed to the GATT 1994, and has failed to exempt products of China subject to the measures at issue from ordinary customs duties in excess of those set forth and provided in the United States' Schedule of Concessions and Commitments annexed to the GATT 1994 and from all other duties or charges in excess of those imposed on the date of the GATT 1994 or those directly and mandatorily required to be imposed thereafter by legislation in force in the United States on that date.
- Article I:1 of the GATT 1994, because the selective application by the United States of the additional import duties on certain steel and aluminum products originating in different Members, including providing exemption or applying alternative means, has failed to extend immediately and unconditionally to China any "advantage, favor, privilege or immunity" granted by the United States "[w]ith respect to customs duties and charges of any kind imposed on or in connection with" the importation of products originating in the territory of other Members, as well as with respect to "the method of levying such duties and charges" and the "rules and formalities in connection with importation".
- Article X:3(a) of the GATT 1994, because the United States has failed to administer its laws, regulations, decisions and rulings in relation to the measures at issue in a uniform, impartial and reasonable manner.
As discussed in the comments here, there is some disagreement about whether the U.S. measures "constitute safeguard measures in substance" (and I have it on good authority that some bets have been placed on this issue over on Twitter). When I was having that conversation in the comments, I was thinking about the issue in the context of whether the U.S. would be bringing a WTO complaint against the Chinese rebalancing/retaliation measures. But I think all the same arguments apply when you turn it around and have China challenging the U.S. measures as violating the GATT/WTO safeguards obligations.
The GATT Articles I and II claims seem pretty straightforward, and the issue there is really going to be about the U.S. Article XXI defense. Presumably the Article XXI defense will also apply to the safeguards claim, although it gets tricky because some of the safeguards obligations are under the Safeguards Agreement rather than the GATT.
I don't see a non-violation nullification or impairment claim in there, which is disappointing on a personal level.
A couple questions:
-- Will this dispute actually get litigated, or will a settlement be reached?
-- Will the U.S. file a WTO complaint against China's retaliation, which, as noted, is based on the idea that the U.S. measure is really a safeguard measure?