Most-Favored-Nation Status of the People's Republic of China
CRS Report for Congress
Most-Favored-Nation Status of the
People’s Republic of China
Updated July 25, 2001
Vladimir N. Pregelj
Specialist in International Trade and Finance
Foreign Affairs, Defense, and Trade Division
Congressional Research Service The Library of Congress
Most-Favored-Nation Status of the
People’s Republic of China
Summary
Particularly since—and to some extent despite—the Tiananmen Square incident
of June 4, 1989, the U.S. Congress has considered two diametrically opposed types
of action regarding China’s nondiscriminatory, or most-favored-nation (MFN;
normal-trade-relations) tariff status in trade with the United States. One has been its
total withdrawal, the other—of more recent origin—its extension on a permanent
basis. After having been suspended in 1951, China’s MFN tariff status with the
United States was restored in 1980 conditionally under Title IV of the Trade Act of
1974, including compliance with the Jackson-Vanik freedom-of-emigration
amendment, which must be renewed annually, and the existence in force of a bilateral
trade agreement between the two countries. This status would be either terminated
or changed into a permanent one.
China’s loss of MFN tariff status would result principally in the imposition of
substantially higher U.S. customs duties on—and in higher, often prohibitive, costs
of—over 95% of U.S. imports from China ($99,580.5 million total in 2000) and a
likely cutback in such imports as well as possible retaliatory reduction by China of its
imports from the United States. A significant economic disadvantage might result for
Hong Kong and Macau, which, despite their political reunification with China, remain
separate economic entities with permanent U.S. MFN status.
Sundry legislation introduced in earlier Congresses to withdraw or severely
restrict China’s MFN status failed to be enacted, in two instances for failure to
override the President’s veto. In the 105th Congress, legislation was introduced, but
not passed, to grant permanent MFN status to China outright or upon its accession
to the World Trade Organization. Some of the permanent-MFN bills would have
placed additional conditions or restrictions on the grant of the MFN status.
Legislation in the 106th Congress reflected China’s prospective accession to the
WTO. On one hand, it prohibited U.S. support of China’s admission to the WTO
without Congress’s legislative approval and, moreover, in two instances required the
United States to withdraw from the WTO if China was admitted to it without the U.S.
support. On the other hand, like in prior years, Congress failed to pass legislation
disapproving the President’s mid-year renewals of China’s Jackson-Vanik waiver and,
moreover, enacted legislation (Title I, P.L. 106-286) approving permanent
nondiscriminatory status for China upon its accession to the WTO.
On January 30, 1998, the President extended the trade agreement with China for
3 years, and on June 1, 2001, renewed for one year China’s Jackson-Vanik waiver
and, thereby, its temporary nondiscriminatory status. Legislative action to disapprove
the waiver renewal was defeated in the House.
Contents
China’s Most-Favored-Nation Status.................................1
Withdrawing or Restricting China’s MFN Status........................3
Reasons for and Effects of
Withdrawing China’s MFN Status...............................6
International Contractual Implications...............................10
Granting to China Permanent MFN Status............................12
Action during the 107th Congress...................................14
List of Tables
Table 1. Illustrative MFN and Full-Duty Rates
Applicable in 2001 to Major Imports from China....................7
Table 2. Incidence of Changes in Duty Rates Due to China’s MFN Status.....9
Most-Favored-Nation Status of the People’s
Republic of China
China’s Most-Favored-Nation Status
In the context of the controversy surrounding the renewal of China’s most-
favored-nation (MFN) status1 or its permanent grant, it should be pointed out that
historically the specific MFN issue involved is that of tariffs rather than of the general
MFN treatment as envisaged by the General Agreement on Tariffs and Trade or the
bilateral commercial compacts to which the United States is a party. Thus, the MFN
status in controversy and, consequently, discussed in this report is limited to
nondiscriminatory tariff treatment of China; that is, the application to imports from
China of the same concessional customs duty rates agreed to by the United States in
reciprocal negotiations with other trading partners.
The United States has applied such MFN tariff treatment as a matter of statutory
policy, enacted in 1934, generally to all of its trading partners. This policy was
modified with the enactment of Section 5 of the Trade Agreements Extension Act of
1951 (P.L. 82-50), which required the President to suspend MFN tariff treatment of
the Soviet Union and all countries of the then Sino-Soviet bloc. Under this statutory
mandate, President Truman suspended China’s most-favored-nation tariff status as of
September 1, 1951. After China’s occupation of Tibet, that country’s MFN status
also was suspended as of July 14, 1952. Whereas earlier the MFN status could, under
certain conditions, be restored to a suspended country by presidential action, such
restoration could take place, since October 1962, only by specific law, until the Trade
Act of 1974, in Title IV, provided specific authority and set out the conditions and the
procedure for its temporary restoration to “nonmarket economy” (NME) countries
and its subsequent continuation in effect.
Under Title IV, the key elements of the procedure for temporary restoration
of the MFN status to an NME country2 are (1) conclusion of a bilateral trade
1Because the term “most favored nation” (MFN) status or treatment, if taken literally, is
misleading, it has been replaced in 1998, by law, in existing and future U.S. statutes with that
of “normal trade relations (NTR)” or another appropriate term (which also is to be used in any
subsequent enactments). The term is still used in this report, interchangeably with that of
MFN, for reasons of historical continuity and because of its continued universal use in
international trade relations and agreements (e.g., the WTO Agreement) as well as in existing
U.S. bilateral trade compacts, including the July 1979 and the November 1999 trade
agreements with China.
2Although legislation to grant permanent NTR treatment to China has been enacted (Title I,
(continued...)
agreement containing a reciprocal grant of the MFN status and additional provisions
required by law, and approved by the enactment of a joint resolution; and (2)
compliance with the freedom-of-emigration requirements (“Jackson-Vanik
amendment;” Section 402; 19 U.S.C. 2432). These requirements can be fulfilled either
by a presidential determination that the country in question places no obstacles to free
emigration of its citizens, or, under specified conditions, by a presidential waiver of
such full compliance.
In accordance with this procedure, the President, on October 23, 1979,
transmitted to Congress the trade agreement with China, signed on July 7, 1979, its
proclamation (Pres. Proc. 4697; 44 F.R. 61161), and the executive order (E.O.
The agreement was approved by Congress on January 24, 1980 (H.Con.Res. 204,
96th Congress) and entered into force on February 1, 1980 (together with the
reciprocal grant of the MFN status, which it contains in addition to all other
provisions required by Section 405(b) of the Trade Act of 1974; 19 U.S.C. 2435(b)).
The continuation in force of China’s (or any other NME country’s) MFN status
is contingent on (1) triennial extensions of the underlying trade agreement and (2)
continued compliance with the Jackson-Vanik amendment, the latter in the case of
two NME countries, including China, by means of annual renewals of the waiver
authority and existing waivers.
The agreement, concluded for a 3-year initial term, itself provides for automatic
3-year extensions, but is subject to termination by either party upon notice at least 30
days before the expiration of any 3-year term. The continuation in force of the
agreement is also subject to the requirement in Section 405(b)(1)(B) of the Trade Act
of 1974 (19 U.S.C. 2435(b)(1)(B)), which applies to any trade agreement concluded
under Title IV with an NME. Under that provision, the agreement is renewed
triennially if a satisfactory balance of concessions has been maintained during the life
of the agreement and the President determines “that actual and foreseeable reductions
in United States tariff and nontariff barriers ... resulting from multilateral negotiations
[which benefit China unilaterally because of its MFN status] are satisfactorily
reciprocated by [China].” Such determination has thus far been published six times,
most recently as Presidential Determination No. 98-14 of January 30, 1998 (63 F.R.
To remain in force, the Jackson-Vanik overall waiver authority as well as the
specific China waiver (and China’s most-favored-nation tariff status, which is
contingent on it) at present must be renewed annually. The renewal procedure entails
(1) a President’s recommendation, which must be made by June 3 of every year, that
2(...continued)
P.L. 106-286), it cannot enter into force in accordance with its own terms before China’s
accession to the World Trade Organization, possibly sometime in 2001. Until then, China’s
NTR status remains subject to annual extensions under the provisions of Title IV.
3Although no determination has been published renewing the trade agreement with China for
the subsequent 3-year period, this has not resulted, in practice, in the termination of the
agreement.
the existing waiver authority and individual waivers be extended for another 12-month
period (through July 2 of the following year). Such extension is (2) automatic upon
the President’s recommendation unless it is disapproved by the enactment of a joint
resolution (before 1990, adoption of a one-house resolution).
The language of the disapproval resolution is prescribed by law, and a specific
fast-track procedure is provided for its consideration. In its basic legislative steps, the
resolution must be reported within 30 calendar days (or else the committee
considering it may be discharged), may be amended only with respect to the country
(or countries) to which it applies, and the debate on it is limited in either chamber to
20 hours, divided equally between those favoring it and those opposing it. The
resolution must be approved by August 31. A presidential veto of the resolution must
be overridden by the August 31 deadline or within 15 days of session after Congress
has received the veto message, whichever is later.4 If the resolution is enacted, the
waiver and the MFN status cease to be effective on the 61st day after its enactment.
Particularly in recent years, congressional opposition to the continuation in force
of China’s MFN status has increased on various grounds, mostly unrelated to the
freedom-of-emigration considerations. Despite this opposition, legislative action to
disapprove its annual extensions has, thus far, been consistently unsuccessful and
China’s waiver and MFN status have remained in force. Moreover, the controversy
in Congress has recently undergone a decided shift of its focus from the issue of
whether to continue in force China’s MFN status under the provisions of Title IV to
the opposite one of granting such status to China unconditionally and permanently.
In a related side issue, the opposition to the application of MFN treatment to
imports from China among the public at large has been in some part caused by an
obvious misunderstanding of the term “most-favored-nation treatment” itself, taking
it in its literal meaning. Congress, primarily prompted by this misunderstanding with
respect to China, consequently, enacted legislation (Section 5003 of the Internal
Revenue Restructuring and Reform Act of 1998 (P.L. 105-206)) replacing the
misleading term in all seven instances of the then existing and in any future statutes
with the term “normal trade relations” (NTR) or another appropriate term.5
Withdrawing or Restricting China’s MFN Status
As long as China remains subject to the Title IV regime (see footnote 2), MFN
status could be withdrawn from China, either permanently or temporarily, in one of
several ways: (1) by direct legislation enacted through regular legislative process6; (2)
4For a detailed description of the legislative procedure for enacting a joint resolution of
disapproval, see CRS Report 96-490, Legislative Procedure for Disapproving the Renewal
of China’s Most-Favored-Nation Status.
5Additional information on this subject is contained in CRS Issue Brief IB93107, Most-
Favored-Nation (Normal-Trade-Relations) Policy of the United States.
6Once China’s NTR status is made permanent under the recently enacted legislation (see
(continued...)
by using the specific means provided in the Trade Act of 1974 for denying MFN tariff
status to a NME country that had it restored under that law, i.e., by the specific
fast-track enactment of a joint resolution disapproving the mid-year annual renewal
of the Jackson-Vanik waiver authority with respect to China, if such renewal is
recommended by the President; (3) by the President’s failure to recommend such
renewal with respect to China in the first place, for noncompliance with the
Jackson-Vanik requirements; or (4) by direct action by the President suspending or
withdrawing China’s MFN status. China also could lose its MFN status if the
agreement is terminated, upon notice, at the end of a term, or, presumably, if the
3-year extension of the U.S.-China trade agreement in force does not take place
because the President declines or omits to make the required determination.7
In past years, Congress has repeatedly and consistently attempted to terminate
or restrict China’s MFN status by means of resolutions disapproving the annual
extension of China’s waiver or by specific legislation, or subject its continuation in
force to additional statutory conditions, primarily in the area of human rights. None
of these measures has become law, although two of them (one in either session of the
102nd Congress), setting additional conditions for the annual extensions of MFN
status, came close to being enacted: passed by both houses, they were vetoed by the
President and the veto was upheld by the Senate.
A special situation arose in mid-1993, when the President extended China’s
waiver for another year, but at the same time in Executive Order 12850 also set
specific additional conditions for the mid-1994 extension of China’s waiver and MFN
tariff status. These conditions closely reflected those set in the several versions of the
United States-China Act of 1993 (103rd Congress) and, in addition to compliance with
the Jackson-Vanik amendment, mandated compliance with the 1992 U.S.-China
prison labor agreement and significant progress with respect to China’s adherence to
the Universal Declaration of Human Rights, release of and accounting for Chinese
citizens imprisoned or detained for the nonviolent expression of political and religious
beliefs, ensuring humane treatment of prisoners by allowing access to prisons by
international humanitarian and human rights organizations, protecting Tibet’s religious
and cultural heritage, and permitting international radio and TV broadcasts into China.
The E.O. also charged U.S. officials to pursue resolutely actions to ensure that China
keeps its commitments to follow fair, nondiscriminatory trade practices in dealing with
U.S. businesses, and adheres to the Nuclear Non-Proliferation Treaty, the Missile
Technology Control Regime guidelines, and other nonproliferation commitments.
Although China denounced the action taken by the President, the principal
sponsors in both houses of the legislation to subject the 1994 extension of China’s
6(...continued)
footnote 2), this would be the only way to restrict, suspend, or revoke it. Such adverse action,
however, would have to be taken having regard of the U.S. MFN obligation toward China
under the WTO, since, by then, China would have already become a WTO member, or else
permanent NTR status could not have been extended to China by the United States.
7In view of the fact that no Presidential determination extending the agreement past January
31, 2001 has been published (see footnote 3) but China’s NTR status, in practice, remains in
force, it appears that such omission bears no practical consequence.
MFN status to additional conditions (Representative Pelosi and Senator Mitchell)
expressed their satisfaction with the President’s action as representing a sufficient step
and stated that further congressional action on their respective bills would be
unnecessary. The linking of China’s MFN status to overall human rights, however,
was abandoned in mid-1994 when President Clinton renewed the China waiver taking
into account only its statutory condition, namely, compliance with the
freedom-of-emigration requirement of the Jackson-Vanik amendment. Subsequent
legislative measures to disapprove the renewal or subject it again to broader human
rights conditions failed.
In both sessions of the 104th Congress, the joint resolutions disapproving the
presidential extensions of China’s MFN status through the renewals of the
Jackson-Vanik waiver failed of passage. Likewise, no action was taken on several
other bills, such as one nullifying China’s waiver and subjecting its restoration to
enactment by regular procedure; or another, conditioning the continuation of China’s
waiver on Taiwan’s speedy admission to the World Trade Organization (WTO); or
one assessing additional tariffs on imports from China until the President determines
that China is fully implementing the agreement on the protection of American
intellectual property rights in China.
In the 105th Congress, joint resolutions disapproving the mid-year renewals of
the waiver authority were introduced in both sessions but failed to be enacted,
allowing the extension of the waiver and China’s MFN status to remain in force
through July 2, 1999. No specific legislation was introduced to withdraw altogether
China’s MFN status; such action, however, was proposed with respect to goods
produced or exported by the People’s Liberation Army or a Chinese military
company, but not further considered. China’s MFN status also would have been
impaired by a bill which required quarterly adjustments of U.S. tariffs on imports from
China based on the amount by which China’s tariffs on exports from the United States
exceed U.S. tariffs on imports from China.
China’s MFN status with the United States also could have been adversely
affected by legislation, introduced but not passed, requiring prior congressional
approval of U.S. support of China’s admission to the WTO and the withdrawal of the
United States from the WTO if China were to be admitted without U.S. support.
In January 1998, the President also published the determination renewing the
In the 106th Congress, congressional action regarding China’s MFN status
—other than two failed annual attempts to disapprove the Presidents renewal of
China’s freedom-of emigration waiver—as in the preceding Congress, reflected to
some extent the current action for China’s admission to the WTO. Four
measures—which would have had only indirect adverse effect on China’s NTR
status—were introduced (but not passed) to prohibit U.S. support of China’s
admission unless approved by legislation. Three of the four measures also required the
United States to withdraw from the WTO if China were to be admitted without the
U.S. support. Lack of U.S. support, however, would have had no practical
consequences, since it could not prevent China’s admission. United States’
withdrawal from the WTO, on the other hand, would have had not only serious
consequences for U.S.-China trade relations but even more serious consequences for
the United States’ leading role in overall international trade relations.
China’s admission to the WTO would have played a more direct role the U.S.
MFN policy toward China through the “snap-back” provision of the proposed China
Market Access and Export Opportunities Act of 1999. Under the provision, current
U.S. duty rates on imports from China would be increased to the pre-Uruguay Round
levels if China were not according adequate trade benefits to the United States or
taking adequate steps toward becoming a WTO member. Lower duty rates would be
restored if the relevant contingency were reversed.
Reasons for and Effects of
Withdrawing China’s MFN Status8
In the context of the Jackson-Vanik amendment and Title IV procedure, the sole
statutory criterion for continuing in force or withdrawing China’s MFN status at
present is China’s compliance with the freedom-of-emigration requirements—a
criterion that in present circumstances no longer represents a practical obstacle to
MFN treatment of China by the United States. The advocates of denying MFN status
to China, however, have gone beyond the narrow scope of the freedom-of-emigration
issue and have based their opposition to continued MFN status on China’s violation
of human rights in general, its unfair trade practices and obstacles to market access,
lack of legal and regulatory transparency, the large and growing U.S. trade deficit
with China, China’s uncooperative attitude in weapons and nuclear nonproliferation,
and, more recently, the alleged illegal Chinese donations to the Democratic National
Committee, or nuclear espionage.
Supporters of MFN treatment of China, among them the Administration, have
taken the position that the resolution of these issues ought to be pursued through
consultations and negotiations in other fora, or by other appropriate means.
Particularly the structural trade and economic issues involved, they suggest, would
best be resolved in the still ongoing negotiations for China’s accession to the World
Trade Organization. In the view of the supporters of China’s continued MFN status,
its withdrawal would be counterproductive since it would increase friction and be less
conducive to resolution of any problems through dialogue. It would, they assert,
particularly in the human rights area, possibly exacerbate the situation, in addition to
the adverse economic consequences it would engender.
Economic consequences would be considerable. Withdrawal of China’s MFN
status would result, in the first instance, in significant duty increases on about 95%
of U.S. imports from China, totaling $99,580.5 million in 2000. The cost effect of the
8Since the enactment of permanent nondiscriminatory treatment for China and consequent
nonapplication of Title IV to China have not yet been implemented, this and some subsequent
section of the report are presented not only for their historical interest but also because of their
continued applicability.
increases would vary among the various product groups, but would on the whole be
substantial.
Table 1 illustrates how the withdrawal of the MFN tariff status would change
the duty rates assessable in 2001 on 15 major products or product groups imported
from China.
Table 1. Illustrative MFN and Full-Duty Rates
Applicable in 2001 to Major Imports from China
MFN RateFullRate
Toys (all kinds)Free70%
Plastic or rubber footwear6%35%
Women’s low footwear (rubber sole/leather uppers)10%20%
Men’s high footwear (rubber sole/leather uppers)8.5%20%
ADP machine partsFree35%
Leather apparel6%35%
ADP printed circuit assembliesFree35%
Men’s high leather shoes8.5%20%
Cordless telephonesFree35%
ADP disk drive unitsFree35%
Sweaters, other than cotton, wool, or manmade material6%60%
Artificial flowers9%71.5%
Sundry plastic articles5.3%80%
Women’s silk blouses7.1%65%
Christmas tree light sets 8%50%
In view of the overall substantial differences between the concessional (MFN)
and full rates of duty, it is clear that the termination of China’s MFN status would
result in substantial increases in the cost of imports from China. The average trade-
weighted MFN duty rate on all 2000 imports from China, dutiable as well as
nondutiable, was 3.8% (on dutiable alone, 7.1%). Without MFN treatment, and
assuming no change in the volume of imports, this rate would have been at about the
45% level. An even larger gap between the MFN and full-duty treatment would
occur in the top categories of U.S. imports from China, primarily because a
substantial share of them are duty free under MFN treatment but would be subject to
high duty rates without it.
On the basis of our recent survey of imports under the individual tariff items each
of whose imports in 2000 exceeded $100 million (212 items in all) and which together
accounted for $66.7 billion (67.0%) of all U.S. imports from China in that year, the
termination of China’s MFN status would increase the importers’ overall cost of those
products by over one-third, mostly in the range between 25% and 65%.
Compared to similar data for earlier years, these figures indicate a larger
concentration of China’s exports to the United States in duty-free products or those
dutiable at low rates (up to 10% ad valorem). Imports free of duty under the NTR
tariff treatment accounted for 87 out of 212 included tariff items, at a total value of
$36.3 billion (36.5% of total U.S. imports from China), and imports dutied at rates
of up to 10% (mostly 5%) ad valorem accounted for 104 tariff items, totaling $25.9
billion (26.0% of total imports) (see Table 2). The data also suggest a significantly
increasing absolute intensification of China’s exports to the United States in the
product lines subject to zero or low-rate duty rates.
As a consequence of the changes brought about by the termination of China’s
NTR status, the trade pattern of articles now imported from China would be likely to
change substantially. Much of their sourcing would be likely to shift to suppliers in
other countries or to domestic suppliers. This restructuring also could and often
would result in higher costs to the importers and consumers of the articles involved.
This, in part because those low-priced imports from China that would still take place
would generally be subject to higher, in many instances much higher, non-NTR duties,
and in part because the cost of imports from alternative sources at NTR duty rates
would most likely be higher than present imports of comparable goods from China
due to their higher product prices.
Although some of the increases in importers’ costs would likely be in part
absorbed in the subsequent chain of distribution, relative cost increases at the retail
level would still be high, particularly on low-margin, moderately priced consumer
goods (certain clothing, footwear, household electrical and electronic products, toys,
etc.). China is now a substantial supplier of such goods, and some of them may, at
least temporarily, even become priced out of the U.S. market. Because of the type
of the articles involved, the resulting increased costs and reduced availability would
affect disproportionately lower-income U.S. consumers.
On the Chinese side, such changes would obviously have an adverse effect by
reducing significantly the U.S. demand for such imports from China. The size of this
reduction and the impact of its adverse effect on China’s economy would depend on
a number of factors, but, in the opinion of several China trade experts, would be
substantial. It would be, it is claimed, particularly damaging to the economy of
China’s southern provinces (Fujian and Guangdong), which are most dependent on
exports and where much of China’s exports originate. Indirectly, it would also
adversely affect Hong Kong and the economic benefits it derives from being the port
of transit for close to 60% of China’s exports to the United States, and whose
businesses also have substantial manufacturing interests in the neighboring southern
China: hence, Hong Kong’s general opposition to the withdrawal of China’s MFN
status. Hong Kong’s reversion to China’s sovereignty as a Special Administrative
Region has not changed its international status as a separate trade and customs entity
nor the role it has played in the past in China’s foreign trade and other economic
relations. A withdrawal of China’s MFN status would also have adverse consequences
for other major investors in South China: Taiwan, Japan, and the United States.
Table 2. Incidence of Changes in Duty Rates
Due to China’s MFN Status
(imports in 2000 under 212 tariff items, valued each $100 million and over;
by 10% duty-rate brackets; values in millions of dollars,
and number of tariff items in each category )
ChangeFreeOver OverOverOverTotal
Tov0% to10% to20% to30% to
From 10%20%30%40%
Free$726.2––– –$726.2
(no change)––––5
5
Over 0% $104.1$223.8–––$327.9
to 10%12–––3
Over 10%$1,696.1$3,024.7–––$4,720.8
to 20%54–––9
Over 20%$1,036.8$1,651.4$660.6––$3,348.8
to 30%492––15
Over 30%$23,025.6$14,189.3$902.0––$38,117.0
to 40%57593––119
Over 40%$2,018.6$2,802.0$1,016.2––$5,836.8
to 50%6115––22
Over 50%–$1,204.1–––$1,204.1
to 60%–5–––5
Over 60%$7,460.0$785.1$371.0–$410.8$9,027.0
to 70%852–116
Over 70%–$1,893.8$117.9––$2,011.7
to 80%–81––9
Over 80%$267.1$128.9$422.9$210.9$193.1$1,223.0
to 90%113218
Over 90%––––––
to 100%––––––
Over – – $176.8 – – $176.8
100% to––1––1
Total $36,334.5 $25,903.1 $3,667.4 $210.9 $604.0 $66,720.0
871041722212
Note: Due to rounding, detail may not add to total.
Depending on whether and, if so, in what way and to what extent China would
retaliate against imports from the United States (by increasing its tariffs to non-MFN
levels, or taking other import-restrictive measures), the annual loss of U.S. exports
to China could be significant, most likely affecting U.S. exports of grain, power
generating machinery, aircraft, and fertilizer products. Also likely to be adversely
affected would be overall U.S. economic relations with China, particularly U.S.
investment and establishment of American businesses.
In addition to having serious adverse practical consequences, disapproval of
the extension of temporary MFN/NTR treatment of China under the provisions of
Title IV would go counter to the obvious intent of the Congress to permanently
normalize trade relations with China, expressed in the substantial vote in favor of P.L.
International Contractual Implications
Denial of China’s MFN status would have to be implemented also with having
regard of two relevant provisions of the 1979 U.S.-China trade agreement, still in
force, addressing specifically the discontinuance of the agreement or of any of its
provisions. In its automatic 3-year extension provision (Article X.2), the agreement
allows for its termination if either party to it “notifies the other of its intent to
terminate this Agreement at least thirty (30) days before the end of a term.” The
agreement also provides (in Article X.3) that “if either Contracting Party does not
have domestic legal authority to carry out its obligations under this Agreement, either
Contracting Party may suspend application of this Agreement, or, with the agreement
of the other Contracting Party, any part of this Agreement.” This provision appears
to be applicable with respect to MFN treatment in the event that the waiver authority
is withdrawn under the Jackson-Vanik amendment or the treatment itself is terminated
by a specific newly enacted statute.
A more generally applicable provision (Article IX), which asserts “the right of
either Contracting Party to take any action for the protection of its security interests,”
also might conceivably, if circumstances warranted, be used to suspend the MFN
treatment.
An additional element to be considered in the context of U.S. MFN policy
toward China is China’s almost completed—if somewhat delayed—procedure for
membership in the World Trade Organization 9 and the obligation of WTO members
(which include the United States) to accord to each other unconditional MFN
treatment in its all-encompassing meaning (i.e., not only with regard to tariffs). This
obligation is contained in Article I of the General Agreement on Tariffs and Trade
1994 (GATT 1994), one of the many compacts resulting from the Uruguay Round of
multilateral trade negotiations that constitute the Agreement Establishing the World
Trade Organization.
China’s accession to the WTO, the procedure for which was initiated in 1986,
is a goal that China as well as many other WTO members, including the United States,
are earnestly pursuing. China’s 6-year-old negotiations of a bilateral trade agreement
with the United States, the provisions of which make part of China’s protocol of
accession to the WTO, intensified in the several months prior to the early April 1999
9For detailed specific aspects of this issue, see CRS Report RL30175, China’s Accession to
the World Trade Organization: Legal Issues; and CRS memorandum Questions Regarding
Accession of the People’s Republic of China to the World Trade Organization, by Jeanne
J. Grimmett, dated March 23, 2000 (released with client consent, and available from the
American Law Division, CRS).
visit to the United States by China’s premier, Zhu Rongji, and resulted in a partial
agreement on market access for agricultural and industrial products and various
services. The negotiations to resolve several other differences between the two
countries, which the United States considered of essence for China’s participation in
the WTO, however, were temporarily suspended by China in the wake of the
accidental bombing by NATO aircraft of China’s embassy in Belgrade. The bilateral
negotiations were resumed and were successfully concluded with the signing of a
voluminous and comprehensive bilateral agreement on November 15, 1999. There
are, however, still some unresolved issues of interest to the United States being
negotiated multilaterally with the WTO.
China’s accession has also become an issue of direct interest to Congress
through the introduction in the 105th and 106th Congresses of several measures
requiring statutory approval of the U.S. support of such accession (see p. 5).
When China accedes to the WTO, the continuation of the present U.S. policy
(which conditions China’s MFN treatment by the United States on compliance with
the requirements of Title IV) or, more drastically, an imposition of additional
restrictions on, or withdrawal of, MFN status from China would constitute a violation
of the U.S. obligations under the GATT 1994 Article I, calling for “general most-
favored-nation treatment” of all GATT signatories/WTO members. In such a case,
China would—after its accession—have cause to submit the issue for resolution to the
WTO Dispute Settlement Body.
One way for the United States to avoid such violation would be by taking
recourse to WTO Article XIII. This article provides for nonapplication of all WTO
multilateral agreements between any current and a newly acceding member if, before
the accession agreement of the new member is approved by the WTO General
Council, either country does not consent to such application.10 If the United States
and China then wished to apply reciprocally any other provisions of the WTO package
of agreements (except permanent MFN treatment), they could technically do so by
amending the existing bilateral agreement or renegotiating it by including provisions
for such application.
Such course of action, however, does not appear likely in practice under present
circumstances, particularly in view of the fact that a comprehensive agreement, the
benefits of which weigh heavily to the benefit of the United States, has already been
reached between the United States and China as part of China’s accession to the
10Such action was taken by the United States at the time when, in similar circumstances,
Hungary, Romania, Mongolia, Kyrgyzstan, and Georgia were, in recent years, joining the
GATT or WTO. The invocation of Article XIII with respect to the all five countries was
rescinded upon their being extended permanent MFN status by the United States. The
invocation of Article XIII by the United States with respect to China would result in reciprocal
nonapplication of the WTO agreements (including the substantial benefits of the U.S.-China
1999 bilateral agreement—a point in favor stressed in the congressional debate on approving
China’s permanent MFN status). The lack of China’s permanent U.S. MFN status, however,
would not prevent, in the context of WTO rules, the United States from voting in favor of
China’s admission to the WTO, nor, on the other hand, would lack of U.S. support by itself
prevent China’s admission to the WTO.
WTO. Recourse to WTO Article XIII would also put this agreement on hold until
the United States were able to apply to China the WTO agreement in its entirety,
essentially by extending to it unconditional and permanent MFN status, a quid pro11
quo on which China would undoubtedly insist.
Granting to China Permanent MFN Status12
Due to China’s progress in its quest for accession to the WTO, the focus of
congressional China MFN debate has in recent years shifted from the issue of annual
renewals of China’s status under a Jackson-Vanik waiver to one of granting China
permanent unconditional MFN/NTR status. The shift has been brought about by the
likelihood that China will soon become a WTO member, and such membership will
require both countries to apply to each other permanent most-favored-nation
treatment. More crucially, denial of permanent NTR treatment on the part of the
United States by continuing the practice of renewing it annually would make
impossible the reciprocal application of the WTO Agreement as well as of the
comprehensive U.S.-China bilateral agreement, which was signed on November 15,
Although attempts to grant permanent MFN/NTR status to China—whether
unconditionally or tied to China’s membership in the WTO—had been made already
in the 105th Congress, the action came to fruition in the 106th Congress.
Draft legislation authorizing the President to terminate the application of Title
IV of the Trade Act of 1974 (including, principally, the Jackson-Vanik amendment)
and by proclamation extend permanent nondiscriminatory treatment to China was
transmitted by the White House to Congress in a Presidential message13 on March 8,
2277 and referred to the Committee on Finance, and on May 15 by Representative
Archer (by request; H.R. 4444) and referred to the Committee on Ways and Means.
In addition to the language of comparable legislation enacted earlier to grant
permanent nondiscriminatory status to several other NME countries in similar
11As long as the 1979 trade agreement with China remains in force, however, the United States
can benefit from a limited number of those types of concessions that have been granted by
China to other countries in bilateral agreements or included in the accession protocol as part
of China’s accession to the WTO for which the 1979 agreement specifically requires
reciprocal MFN application. While China’s tariff concessions to other WTO members would
apply to China’s imports from the United States on MFN basis, the United States would,
however, be precluded from access to two key elements of the WTO agreement: the WTO
dispute settlement mechanism, and the agreement on services.
12This action does not apply to China’s Special Administrative Regions of Hong Kong and
Macau, to which MFN treatment by the United States is due individually since they already
were members of the WTO as separate customs territories before their respective reversions
to China.
13U.S. President (Clinton, 1993-). Permanent normal trade relations for China; message
from the President of the United States... Washington, U.S. Govt. Print. Off., 2000 3 p. (106th
Congress,2d session. House Document 106-207). Message dated March 8, 2000.
situations, the two bills required the President to transmit to Congress, before making
the determination terminating the application of Title IV to China, a report certifying
“that the terms and conditions for China’s accession to the WTO are at least
equivalent to those agreed” in the U.S.-China bilateral agreement. The bills also set
as the effective date of the legislation a date “no earlier than the effective date of
China’s accession to the WTO,” thereby equating the extension of permanent MFN
status to China under domestic law with the United States’ identical international
obligation under the WTO.
H.R. 4444 was amended and reported favorably by the House Ways and Means
Committee with the addition of provisions detailing criteria and procedures for
product-specific remedial action—to remain in force for 12 years—against disruption
of the U.S. market by surges in imports from China. Anti-surge provisions would
apply regardless of whether such surges are autonomous or caused by diversion of
Chinese exports from third countries to the United States because of import-safeguard14
action by those countries against disruptive surges in their imports from China.
These provisions, a bipartisan proposal by Representatives Levin and Bereuter and
supported by the Administration, address the concern regarding possible injurious
consequences of China’s permanent NTR status. They are the U.S. domestic
enactment of the special anti-surge mechanism negotiated as part of the U.S.-China
bilateral agreement, but made part of China’s WTO accession protocol and applicable
on an MFN basis to any WTO member country’s imports from China.
H.R. 4444 was further amended by the Rules Committee15 with the addition of
provisions establishing a Congressional-Executive Commission to monitor and report
on China’s human rights and compliance with WTO commitments, and a task force
to monitor and enforce China’s compliance with the U.S. anti-slave-labor statute,
establishing programs to develop China’s commercial and labor law, and expressing
the sense of Congress that China’s and Taiwan’s accession to the WTO be approved
at the same time. The Rules Committee version was passed by the House on May 24,
S. 2277 was reported favorably without amendment on May 25, 2000,16 but not
further considered. Instead, the Senate, on September 7, 2000, began considering
H.R. 4444. Due to a large number of amendments—none of which was agreed to—
14U.S. Congress. House. Committee on Ways and Means. Permanent normal trade relations
with the People’s Republic of China. Report together with additional views (to accompany
H.R. 4444). Washington, U.S. Govt. Print. Off., May 22, 2000. 37 p. (106th Congress. 2d
Session. H.Rept. 106-632).
15U.S. Congress. House. Committee on Rules. Providing for the further consideration of H.R.
4444, a bill to authorize the extension of nondiscriminatory treatment (normal trade
relations treatment) to the People’s Republic of China. Report (to accompany H.Res. 510).th
Washington, U.S. Govt. Print. Off., May 23, 2000. 29 p. (106 Congress, 2d Session.
H.Rept. 106-636).
16U.S. Congress. Senate. Committee on Finance. Termination of the application of Title IV
of the Trade Act of 1974 with respect to the People’s Republic of China. Report (toth
accompany S. 2277). Washington, U.S. Govt. Print. Off., May 25, 2000. 10 p. (106
Congress, 2d Session. S.Rept. 106-305).
the debate on the measure was protracted and the vote on it was delayed to
September 19, when it was passed by a vote of 83 to 15 and on October 10, 2000
signed by the President (Title I, P.L. 106-286).
Even though legislation approving China’s permanent normal trade relations
(PNTR) status has been enacted, PNTR treatment itself—in accordance with the
legislation—will not enter into force until China accedes to the WTO. The accession
becomes effective 30 days after China ratifies the protocol of accession—now still
being negotiated—and a decision by the WTO General Council (foreseeably in late
Action during the 107th Congress
China’s favorable MFN/NTR situation after the legislative approval of the U.S.-
China bilateral trade agreement suffered a setback in early April 2001 as a result of
the negative reaction in Congress as well as in the general public, triggered by China’s
intransigence following the April 1 collision, over international waters off the coast
of South China, of a U.S. Navy reconnaissance plane and a Chinese fighter.
Legislative reaction in Congress to China’s insistence that the United States apologize
for the accident was swift: on April 4, Representative Hunter and a large number of
cosponsors introduced H.R. 1467 to repeal nondiscriminatory trade treatment of
China, whether temporary or permanent, and prohibit any subsequent extension of
it. On the same day, a somewhat less radical measure (H.R. 1497) was introduced by
Rep. Murtha and seven cosponsors, repealing the already enacted permanent NTR
status to China, but leaving the Title IV authority for temporary NTR status
unchanged with respect to China. Both bills were referred to the Ways and Means
Committee, but thus far saw no further action.17
Despite this opposition in Congress, the President, on June 1, 2001, renewed
China’s Jackson-Vanik waiver for one year (Presidential Determination 2000-16; 66
FR 30631). This temporary extension was necessary because China’s permanent
NTR, enacted by P.L. 106-286, will enter into force only after China’s accession to
the WTO. H.J.Res. 50 to disapprove the extension of China’s Jackson-Vanik waiver
was introduced June 5, 2001, by Rep. Rohrabacher, and a hearing on the subject was
held by the Ways and Means Trade Subcommittee on July 11, 2001. H.J.Res. 50 was
reported adversely on July 18, 2001,18 and defeated (169 - 259) in the House on July
19, 2001, allowing China’s J-V waiver (and nondiscriminatory status) to remain in
force through July 2, 2002.
17Enactment of either bill would create for the United States difficulties with the World Trade
Organization, as described in the section on International Contractual Implications.
18U.S. Congress. House. Committee on Ways and Means. Disapproval of normal trade
relations treatment to the People’s Republic of China. Adverse report (to accompanythst
H.J.Res. 50). Washington, U.S. Govt. Print. Off., July 18, 2001. 10 p. (107 Congress, 1
Session. H. Rept. 107-145).