US 'Fentanyl' Tariffs Violate WTO Rules

The US imposition of additional tariffs on China over the fentanyl issue appears justified as a measure to protect public health and safety. However, from the perspective of international trade law, these tariffs lack acceptable arguments for exemption under the legal framework of the World Trade Organization (WTO).

The additional tariffs imposed by the United States ignore core WTO obligations such as most-favored-nation (MFN) treatment and the schedule of concessions. The United States may cite Section 301 of the Trade Act of 1974 or Section 232 of the Trade Expansion Act to justify its unilateral actions, but domestic legal provisions do not guarantee exemption from WTO obligations.

In order to successfully avail itself of the exceptions to the General Agreement on Tariffs and Trade (GATT 1994), particularly Article XX (general exceptions) and Article XXI (security exceptions), the United States must demonstrate that its customs measures are necessary and do not constitute arbitrary or unjustified discrimination in international trade. According to WTO precedents and interpretation of the rules, it is unlikely that the United States will be able to justify its measures through either the general exception or the national security exception.

If the US continues to implement these tariffs, affected countries may initiate consultations within the WTO, request the establishment of a panel to adjudicate the matter, or pursue trade retaliation proceedings in parallel, in accordance with the understanding on the rules and procedures governing the dispute settlement (DSU). Given the current global economic situation, the US abusing unilateral tariff measures will make the multilateral trading system less stable and predictable.

What is more important is that linking public health issues with customs pressure does not play a positive role in controlling drug flows or cross-border law enforcement cooperation. Rather, it increases political escalation and hinders effective governance based on consultation and cooperation. The solution is to take comprehensive measures with shared responsibility, including reducing drug demand, cross-border law enforcement cooperation, and strengthening multilateral cooperation, to create a more constructive plan for global drug control governance.

As a responsible country, China has adopted the strictest controls in combating drug production, trafficking and use. The continuous progress of China-US anti-drug cooperation is the right way to solve the fentanyl problem. The US's unilateral measures will undoubtedly undermine the authority and stability of the multilateral trading system and reject the call for joint response to global challenges in an expanding world. More importantly, unilateral tariff measures are far from addressing the root cause of the fentanyl crisis in the US. Major countries should act in accordance with their status and refrain from taking actions that benefit no one.

The writer is a professor at the School of Law, Shanghai University of International Business and Economics.