试论从WTO法上挫败特朗普的贸易战

Defeating Trump's Trade War Pursuant to WTO Law

既然特朗普公开威胁要退出WTO,并无视WTO规则发起贸易战,我们还能凭借WTO法来挫败特朗普吗?其实,尽管美国霸气十足,但并非不顾忌WTO法。特朗普靠玩弄一个法律规则技巧,即滥用WTO一致同意原则,以一票反对,阻止WTO上诉机构新成员遴选程序,"合法"使WTO争端机制面临瘫痪,实现战术性突破,以达到天下大乱的战略目的,从而按美国优先原则重塑WTO。然而,这也正是美国在WTO法上的软肋。一致同意并非WTO决策唯一规则,许多条款修订只需要2/3通过,我们同样可点点这个穴,争取2/3多数通过一个上诉机构大法官遴选"新条款"或"新上诉机构遴选协议",作为战术突破口,采纳拉米的提议,迫使特朗普抉择退出或回归WTO,或形成"双速"WTO——一个有美国但无上诉机构的WTO和一个没有美国但有上诉机构的WTO并存,争取贸易战的主动权,在战略上挫败特朗普,扶正WTO改革的方向。

Now that President Trump has publicly threatened to withdraw from the WTO and initiated trade war by ignoring WTO rules, would it be able for us to defeat Trump’s trade war pursuant to WTO law? In fact, although the United States is domineering, it is not without being taboo to WTO law. President Trump has resorted to a trick of playing with a legal rule, that is, by abusing the principle of WTO consensus for decision-making and opposing by one veto, to block selection of new members of Appellate Body, and 'legitimately' paralyze the WTO dispute mechanism, while achieving a strategic target for causing a world-wide chaos by such a tactical breakthrough, in order to reshape the WTO pursuant to America First. However, this is just a legal weakness of the United States in WTO law. Acceptance by consensus is not the only rule for WTO decision-making. Amendment of most provisions of WTO agreements, except for DSU, needs only 2/3 majority to be adopted. Thus we can exploit this weak point of the US, and strive for a 2/3 majority to adopt a 'new clause' for selection of Appellate Body members, or an 'agreement for a new Appellate Body', as a tactical breakthrough to adopt Lamy’s proposal forcing Trump to choose whether to withdraw from or return to WTO, or to form 'Two-speed' WTO: a WTO including the US without Appellate Body and a WTO excluding the US with Appellate Body. That is our strategic target to strive for the initiative of the trade war, to defeat Trump and to rectify the direction of the WTO reform.